Philiose Ommman v. District Police Chief, Pathanamthitta District; The Station House Officer, Pathanamthitta; Muhammed Rasheed V.J.

W.P.(C).No.30415 of 2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944 WP(C) NO. 30415 OF 2022** ## **PETITIONER:** PHILIPOSE OMMAN AGED 54 YEARS S/O OOMMAN C.S, HANIEL HOUSE, VETTIPURAM, PATHANAMTHITTA P.O & VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT PIN - 689645 BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) SAMEER M NAIR GEETHU KRISHNAN SAILAKSHMI MENON ## **RESPONDENTS:** 1 THE DISTRICT POLICE CHIEF OFFICE OF DISTRICT POLICE CHIEF, PATHANAMTHITTA DISTRICT PIN - 689645 2 THE STATION HOUSE OFFICER POLICE STATION OF PATHANAMTHITTA, PATHANAMTHITTA DISTRICT, PIN - 689645 W.P.(C).No.30415 of 2022 2 3 MUHAMMED RASHEED V.J AGED 48 YEARS S/O JAINUDEEN V.K @ JAIN, VALLIYAPARAMPIL VEEDU, VETTIPURAM, PATHANAMTHITTA P.O & VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT PIN - 689645 BY ADVS. GOVERNMENT PLEADER SRI.T.K.SHAJAHAN S.SHANAVAS KHAN S.INDU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON 10.11.2022 DELIVERED THE FOLLOWING: W.P.(C).No.30415 of 2022 3 ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.30415 of 2022** **= = = = = = = = = = = = = = = = Dated this the 10[th] day of November, 2022** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following reliefs: “I) To issue a writ of mandamus or any appropriate writ or direction, directing the 1[st] and 2[nd] respondents to afford sufficient police protection to the petitioner and his workers engaged in the repairing and increasing the height of the existing granite boundary wall evident by Ext.P7; 2)To issue a writ of mandamus of any appropriate writ or direction, directing the respondent 1 to 2 to take further action in Ext.P4 to ExtP6 representations within a time frame fixed by this Hon'ble Court.” - 2.Heard the learned counsel for the petitioner, learned Government Pleader as well as learned counsel appearing for the 3[rd] respondent. - 3.It is contended that learned counsel for the petitioner that the 3[rd] respondent and his henchmen are threatening the life of the petitioner and his workers engaged for the purpose of repairing an existing boundary wall and raising its height. It is submitted W.P.(C).No.30415 of 2022 4 that though the petitioner had approached the police seeking protection, no action had been taken and that the petitioner's valuable rights stand affected. It is contended that the predecessors-in-title of the petitioner had 72.835 cents of land. The father of the 3[rd] respondent had property to the immediate north of the above mentioned property. The petitioner’s predecessors-in-interest had constructed a rubble wall having a length of 100 meters separating their property from the property of the 3[rd] respondent. O.S.No.370/2000 was filed by the predecessors-in-interest of the petitioner against the 3[rd] respondent's father asserting their exclusive right over the said rubble wall and the suit was decreed by Ext.P1 decree dated 30.01.2004 in OS.No.370 of 2000 by the Munsiff Court, Pathanamthitta. It is submitted that thereafter the property was purchased by different persons including the petitioner and a common pathway along with the granite boundary wall was also purchased by the petitioner and others. It is submitted that the 3[rd] respondent again filed O.S. No.233/2021 claiming right over the granite boundary wall and sought an ad interim injunction. After hearing the parties, the application for W.P.(C).No.30415 of 2022 5 injunction was dismissed by order dated 21.12.2021 finding that the 3[rd] respondent had suppressed Ext.P1 decree by Ext.P3 order dated 21.12.2021. Thereafter, the petitioner attempted to increase the height of the existing boundary wall, but the 3[rd] respondent obstructed the same and complaints were submitted by the petitioner. It is contended that refusal on the part of the police to grant effective protection for the construction of the compound wall in the petitioner’s premises, the right to which has been decided by the civil court, is illegal and violative of the petitioner's rights. 4.A counter affidavit has been filed by the 3[rd] respondent. It is contended that the property of the petitioner lies at a lower level than the property of the respondent and that there is a retaining wall constructed by the respondents’ ancestors for protecting their property. It is submitted that the attempt of the petitioner is to encroach into the adjoining pathway of the 3[rd] respondent and to reduce the width of the same, as also to increase the height of the wall so as to block the air passage and ventilation to the 3[rd] respondent’s building. It is contended W.P.(C).No.30415 of 2022 6 that C.M.A.No. 35 of 2022 is pending against the Ext.P3 order before the District Court Pathanamthitta and that there is no attempt on the life of the petitioner or his workers and the question is only with regard to the right over the compound wall, which is pending in appeal. It is submitted that since the question has not been finally decided, the petitioner cannot claim any right to increase the height of the existing wall without the conclusion of the proceedings admittedly pending. - 5.A reply affidavit has also been filed by the petitioner stating that the issue with regard to ownership of the rubble wall stands settled by Ext.P1 decree, which has become final. Ext.P9 judgment is also produced. It is, therefore, contended that on the dismissal of the application for injunction filed in the suit by the 3[rd] respondent, the right of the petitioner and other coowners over the rubble wall has become final and therefore the petitioner is entitled to effect the construction as sought for. - 6.The learned Government Pleader submits that it is on the understanding that the dispute between the parties is a civil W.P.(C).No.30415 of 2022 7 dispute that the police had not taken further action on the complaints raised. - 7.The learned counsel for the respondents places reliance on the decision of a Division Bench of the this Court in **Rajendran Kambakkaram C.K. v. State of Kerala and others** [2022 (6) KHC 203] to contend that in matters involving civil disputes with regard to title and possession over property, police protection should not be ordered by the courts. - 8.Having the considered the contentions advanced, I notice that the issue specifically is with regard to the ownership of the rubble wall separating the pathways leading to the residential properties of the petitioner as well as the 3[rd] respondent. Admittedly, a suit had been filed by the predecessor-in-interest of the petitioner, which resulted in Ext.P1 ex parte decree. The 3[rd] respondent had filed a further suit and suffered Ext.P3 order rejecting his application for ad interim injunction against which Ext.R3(b) appeal is pending before the District Court Pathanamthitta. It is, therefore, clear that the issue with regard W.P.(C).No.30415 of 2022 8 to the right over the wall has not been conclusively decided by the civil court as claimed by the petitioner. The suit as well as the CMA are admittedly pending. In case the petitioner wants to raise the height of the wall, which is the subject matter of the suit as well as the CMA, I am of the opinion that it is for the petitioner to seek such directions in the pending civil proceeding, since the question apparently is still at large. In the facts and circumstances of the instant case, since, the suit is still pending and has not been decided as yet, I am of the opinion that the prayers, as sought for, cannot be granted. The writ petition fails and the same is accordingly dismissed. **==> picture [25 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.30415 of 2022 9 ## **APPENDIX OF WP(C) 30415/2022** PETITIONER EXHIBITS - Exhibit P1 THE TRUE COPY OF THE DECREE DATED 30.01.2004 IN O.S NO.370/2000 ON THE FILES OF MUNSIFF COURT, PATHANAMTHITTA. - Exhibit P2 THE TRUE COPY OF THE SALE DEED NO. 3187/2006 OF SRO, PATHANAMTHITTA - Exhibit P3 . THE TRUE COPY OF THE ORDER DATED 21.12.2021 IN I.A NO.1/2021 IN O.S NO.233/2021 ON THE FILES OF MUNISFF COURT, PATHANAMTHITTA - Exhibit P4 THE TRUE COPY OF THE REPRESENTATION DATED 01.07.2022 FILED BY PETITIONER AND OTHERS BEFORE THE 2ND RESPONDENT - Exhibit P5 THE TRUE COPY OF THE COMPLAINT DATED 11.07.2022 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ALONG WITH THE RECEIPT IS PRODUCED - Exhibit P6 THE TRUE COPY OF THE EMAIL DATED 17.09.2022 PREFERRED BY THE PETITIONER TO THE 1ST RESPONDENT . - Exhibit P7 THE PHOTOGRAPHS SHOWING THE EXISTING GRANITE BOUNDARY WALL AND SURROUNDINGS - Exhibit P8 The true copy of the relevant page of petition register of Pathanamthitta Police Station on 11.05.2022 and 16.07.2022 - Exhibit P9 The true copy of the judgment dated 30.01.2004 in O.S No.370/2000 on the files of the Munsiff Court, Pathanamthitta W.P.(C).No.30415 of 2022 10 RESPONDENTS EXHIBITS ANNEXURE R3(A) TRUE COPY OF PLAINT IN O.S.NO.233/2021 ON THE FILE OF MUNSIFF COURT, PATHANAMTHITTA ANNEXURE R3(B) TURE COPY OF THE MEMORANDUM OF CIVIL MISCELLANEOUS APPEAL IN CMA 35/2022 ON THE FILE OF THE HON'BLE DISTICT COURT, PATHANAMTHITTA.