Ponnamma v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON** ## **THURSDAY, THE 31ST DAY OF MAY 2018 / 10TH JYAISHTA, 1940** **WP(C).No. 6691 of 2018(J) -------------------------** ## **PETITIONER(S):** **-------------** **PONNAMMA AGED 55, W/O. THIRUMENI, MUTTATHAKUDIYIL, KURICHILAKODE KARA, KODANAD VILLAGE, KUNNATHUNADU TALUK, RESIDING AT THATTEMKURY HOUSE, AIMURY KARA, KOOVAPPADY VILLAGE.** **BY ADVS.SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.N.RAJESH** ## **RESPONDENT(S):** **-------------** ## **1. STATE OF KERALA** **REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DEPUTY SUPERINTENDENT OF POLICE PERUMBAVOOR-683 542.** **3. STATION HOUSE OFFICER KODANAD POLICE STATION, PERUMBAVOOR-683 544.** ## **4. JAYANANDAN** **AGED ABOUT 61, S/O. NARAYANAN, MUTTATHAKUDIYIL, KURICHILAKODE KARA, KODANAD VILLAGE, KUNNATHUNADU TALUK, RESIDING AT THATTEMKUDY HOUSE, AIMURY KARA, KOOVAPPADY VILLAGE, KOOVAPPADY P.O.-683 544.** ## **5. SIVARAJAN** **AGED ABOUT 55, S/O. NARAYANAN, MUTTATHAKUDIYIL, KURICHILAKODE KARA, KODANAD VILLAGE, KUNNATHUNADU TALUK, RESIDING AT THATTEMKUDY HOUSE, AIMURY KARA, KOOVAPPADY VILLAGE, KOOVAPPADY P.O.-683544.** **WP(C).No. 6691 of 2018 (J)** **2** **---------------------------** ## **6. SUKUMARAN** **AGED ABOUT 53, S/O. NARAYANAN, MUTTATHAKUDIYIL, KURICHILAKODE KARA, KODANAD VILLAGE, KUNNATHUNADU TALUK, RESIDING AT THATTEMKUDY HOUSE, AIMURY KARA, KOOVAPPADY VILLAGE, KOOVAPPADY P.O.-683544.** ## **7. VIJAYAN** **AGED ABOUT 49, S/O. NARAYANAN, MUTTATHAKUDIYIL, KURICHILAKODE KARA, KODANAD VILLAGE, KUNNATHUNADU TALUK, RESIDING AT THATTEMKUDY HOUSE, AIMURY KARA, KOOVAPPADY VILLAGE, KOOVAPPADY P.O.-683544.** **R1-R3 BY SR.GOVERNMENT PLEADER SRI.P.P.THAJUDHEEN R6,R7 BY ADV. SRI.P.THOMAS GEEVERGHESE R6,R7 BY ADV. SRI.TONY THOMAS (INCHIPARAMBIL)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 6691 of 2018 (J) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS: ------------------------** - **EXHIBIT P1 TRUE COPY OF DELIVERY REPORT IN E.P.43/15 IN OS 210/94 OF MUNSIFF'S COURT, PERUMBAVOOR DATED 17.8.17. EXHIBIT P2 TRUE COPY OF SURVEY PLAN OF PROPERTY IN SY. 128/1,2 OF BLOCK NO. 6 OF KODANAD VILLAGE. EXHIBIT P2A TRUE COPY OF SURVEY PLAN OF PROPERTY IN SY. 138/3,4 OF BLOCK NO. 6 OF KODANAD VILLAGE. EXHIBIT P2B TRUE COPY OF SURVEY PLAN OF PROPERTY IN SY.138/5 OF BLOCK NO. 6 OF KODANAD VILLAGE. EXHIBIT P2C TRUE COPY OF SURVEY PLAN OF PROPERTY IN SY.131/5 OF BLOCK NO. 6 OF KODANAD VILLAGE. EXHIBIT P2D TRUE COPY OF SURVEY PLAN OF PROPERTY IN SY. 303/8,5 OF BLOCK NO. 6 OF KODANAD VILLAGE. EXHIBIT P2E TRUE COPY OF SURVEY PLAN OF PROPERTY IN SY.294/12 OF BLOCK NO. 6 OF KODANAD VILLAGE. EXHIBIT P3 TRUE COPY OF TAX PAID RECEIPT NO.6076957 DATED 20.9.17 ISSUED FROM KODANAD VILLAGE OFFICE. EXHIBIT P4 TRUE COPY OF JUDGMENT IN RSA 850/17 DATED 29.1.18 OF THIS COURT. EXHIBIT P5 TRUE COPY OF PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 21.2.18. EXHIBIT P6 TRUE COPY OF RECEIPT DATED 21.2.18 EVIDENCING RECEIPT OF EXHIBIT P5 BY 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY RESPONDENTS 4 TO 6 BEFORE THIS COURT IN R.S.A.850/17 ON 11.8.17.** **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXHIBIT R6(a) TRUE COPY OF JUDGMENT OF MUNSIFF'S COURT, PERUMBAVOOR IN O.S.365/2005.** **EXHIBIT R6(b) TRUE COPY OF MEMORANDUM OF APPEAL IN A.S. 19/17 OF SUB COURT, PERUMBAVOOR. EXHIBIT R6(c) TRUE COPY OF OBSTRUCTION PETITION FILED UNDER ORDER 21, RULE 97 CPC AS E.A.153/2017 IN E.P. 43/2017 OF MUNSIFF'S COURT, PERUMBAVOOR.** **/TRUE COPY/** **PA TO JUDGE** _**dkr**_ ## K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------- W.P.(C) No. 6691 of 2018 ------------------------------------------Dated this the 31[st] day of May, 2018 ## J U D G M E N T ## Ashok Menon, J. The petitioner and respondents 4 to 7 are siblings and the children of late Narayanan. The petitioner and her brothers started litigating for their father's property way back in 1994, when she was constrained to file O.S.No.210/1994 against her brothers for partition and separate share. The brothers raised a contention that the suit was bad for non-joinder of their half-sister Mallika, who is also entitled to a share in the property. Consequently, she too was impleaded and the suit was decreed on 31-01-2000. Application for final decree was filed by the petitioner and on deputation of the Commissioner, the property was divided by metes and bounds. While the proceedings were pending, the petitioner's half-sister Mallika requested that the matter be placed before the Adalath and the Adalath suggested a settlement and the final decree was passed on the basis of the award passed by the Adalath. The party _WP(C)6691/2018_ 2 respondents herein did not co-operate with the discussions which took place before the Adalath for settlement of the dispute. The 4[th] respondent herein challenged the final decree proceedings before the Additional District Court, North Paravur by filing A.S.No.213/2005. The appeal was dismissed. R.S.A.No. 1163/2006 was filed and the final decree was set aside on technical ground and direction was given to the lower court to hear the matter afresh and pass the final decree. Accordingly, the final decree was passed on 21-07-2014. That final decree was again challenged by the party respondents 4 to 6 before the Sub Court, Perumbavoor by filing A.S.No.83/2014. In the meanwhile, the final decree was got engrossed by the petitioner herein and she filed E.P.No.43/2015 for getting delivery of the property. A.S.No.83/2014 was dismissed on 31-03-2017. Despite various untenable objections being raised by the party respondents herein, delivery was ordered, brushing aside those contentions. When the Amin went to the property for effecting delivery, the party respondents herein along with some female members obstructed the same. The executing court had to provide police assistance to the Amin deputed from the court to _WP(C)6691/2018_ 3 deliver the property to the petitioner on 11-08-2017 and a report was filed by the Amin before the execution court on 17-08-2017. That delivery report, which forms the basis for the possession claimed by the petitioner over her property is Ext.P1. The survey plans pertaining to the division of properties are Ext.P2 series. The petitioner also effected mutation and is paying tax for the properties delivered to her. Ext.P3 is copy of the basic tax receipt obtained on 20-09-2017. Dissatisfied, the party respondents challenged the final decree once again by filing R.S.A.No.850/2017. This Court made certain observations regarding the division of property by the Commissioner, mainly pertaining to one item, having an extent of 36.70 ares in R.S.No.303/5. The petitioner was willing to relinquish her claim over an extent of 6.25 ares allotted to her from that item of property and was satisfied with the other five items regarding which there could have been no objection. The R.S.A. was disposed of vide Ext.P4 judgment, confirming the final decree, except regarding item No.5 comprised in R.S.No.303/8-3 and the parties were directed to appear before the trial court for effecting partition of that property between the defendants 1 to 5 in _WP(C)6691/2018_ 4 the suit, ie., respondents 4 to 7 herein and Mallika, their half-sister. Regarding all other properties, which were delivered to the petitioner in the final decree, there was no dispute and the final decree was confirmed. After about two decades of tiring litigation, when the property ultimately came into the possession of the petitioner to enjoy it, the party respondents obstructed her husband and workers from entering the properties and threatened them with dire consequences if they dared to enter the property. Aggrieved by this act of the party respondents, the petitioner filed Ext.P5 complaint before the 2[nd] respondent. The party respondents were summoned by the police and directed not to cause any obstruction to the petitioner entering her property, but failed to take any stringent action against the erring party respondents for the reason that the dispute is one of purely civil nature. The indolence on the part of the 2[nd] respondent has encouraged the party respondents further in their illegal activities. The civil dispute between the petitioner and the party respondents have attained finality. Despite that, the petitioner is not able to enjoy the property set apart and delivered to her in the partition. Hence, she has approached this _WP(C)6691/2018_ 5 Court seeking intervention of this Court to issue specific directions to respondents 2 and 3 to afford adequate and sufficient protection to her so as to enable her to enjoy her property. 2. The learned Senior Government Pleader appearing for respondents 1 to 3, on instructions, submits that the party respondents were called to the police station and issued stringent warning. 3. The 6[th] respondent for himself and on behalf of 7[th] respondent has filed a detailed counter-affidavit supported by certain documents contending that the petitioner is not entitled to any of the reliefs in this Writ Petition because of non-joinder of necessary parties. It is submitted that all the parties in Ext.P4 judgment ought to have been made parties. It is further stated that one Kamalakshi, who is the maternal grand-daughter of Ayyappan, the paternal grandfather of the petitioner, had filed O.S.No.365/2005 before the Munsiff's Court, Perumbavoor with a prayer to set aside the decree and judgment obtained by the petitioner in her favour in O.S.No.210/1994. That suit was dismissed and copy of the judgment in O.S.No.365/2005 is _WP(C)6691/2018_ 6 produced by the party respondents as Ext.R6(a). It is also stated that an appeal has been preferred challenging Ext.R6(a) and the same is pending as A.S.No.19/2017 before the Sub Court, Perumbavoor. Appeal was filed by respondents 4 to 6 herein as Ext.R6(b) and it is pointed out that there is every possibility of the appeal being allowed. The petitioner should not have been handedover possession of the property. It is further contended by the party respondents that the property does not actually belong to their father, Narayanan, but to their grand-father Ayyappan and the petitioner had obtained the decree in O.S.No.210/1994 misleading the court that the property belonged to Narayanan alone. The suit is bad for non-joinder of necessary parties, since all the legal heirs of Ayyappan, including Kamalakhi, the plaintiff in O.S.No.365/2005, were not made parties. It is therefore contended by the party respondents that the right of the petitioner obtained as per Ext.P4 judgment and Ext.P1 delivery report will ultimately depend on the final adjudication of O.S.No.365/2005 and the appeal therefrom filed as A.S.No.19/2017. It is also submitted that Kamalakshi has raised an objection in the execution petition as E.A.No.154/2017 in _WP(C)6691/2018_ 7 E.P.No.43/2017 under Order 21, Rule 97 before the execution court obstructing delivery of the properties and copy of that petition is Ext.R6(c). The execution court did not adjudicate that petition. The civil dispute between the petitioner and the party respondents has not attained finality as claimed by the petitioner. The petitioner and her husband want to cut and remove certain valuable trees in the property and commit waste. It was Kamalakshi and her men, who had prevented the petitioner and her workers from cutting down trees in the property and not by the party respondents, and therefore, the Writ Petition is only to be dismissed with direction to resolve the civil dispute before appropriate forum. 4. The petitioner has filed a reply affidavit refuting all the contentions raised in the counter-affidavit. It is stated that the party respondents have never raised any contention of non-joinder of Kamalakshi or any other legal heirs of late Ayyappan to be made parties in the partition suit filed by the petitioner. From the appeal memorandum filed by the party respondents as R.S.No.850/2017 (Ext.P7) the contentions raised by the party respondents would be explicitly clear. Kamalakshi had filed O.S.No.365/2005 at the _WP(C)6691/2018_ 8 instigation of respondents 4 to 7, who were somehow bend upon thwarting the attempt of the petitioner to get the ancestral property divided. 5. History of the dispute between the petitioner and the party respondents, who are her own brothers, indicates towards the cussedness on the part of the brothers and their tenacity and determination to thwart their sister from enjoying the fruits of the hard earned decree. The Supreme Court in Satyawati Vs. Rajinder Singh and another, (2013) 9 SCC 491, while dealing the appeal for execution deprecated the unreasonable delay for the reason that the decree-holder if is unable to enjoy the fruits, the entire effort of successful litigant would be in vain. The Supreme Court has observed thus :- “12. It is really agonizing to learn that the appellant decree- holder is unable to enjoy the fruits of her success even today i.e. in 2013 though the appellantplaintiff had finally succeeded in January, 1996. As stated hereinabove, the Privy Council in the case of The General Manager of the Raj Durbhunga vs. Coomar Ramaput Singh had observed that the difficulties of a litigant in India begin when he has obtained a Decree. Even in 1925, while quoting the aforestated judgment of the Privy Council in Kuer Jang Bahadur vs. Bank of Upper India Ltd.,the Court was constrained to observe that: “Courts in India have to be careful to see that process of _WP(C)6691/2018_ 9 the Court and law of procedure are not abused by the judgment-debtors in such a way as to make Courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights.” 13. In spite of the aforestated observation made in 1925, this Court was again constrained to observe in Babu Lal vs. Hazari Lal Kishori Lal in para 29 that: “29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree holder starts in getting possession in pursuance of the decree obtained by him. The judgment debtor tries to thwart the execution by all possible objections” 14. ..... 15. Once again in Shub Karan Bubna vs. Sita Saran Bubna at para 27 this Court observed as under : “27. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant.” 16. As stated by us hereinabove, the position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain.” _WP(C)6691/2018_ 10 6. It is pertinent to note that the petitioner herein has been prevented from enjoying the fruits of the decree which she has obtained after two decades of litigation. The delivery that was effected in this case as per Ext.P1 report of the Amin is not a mere 'symbolic' delivery but 'actual'. The property was measured with the help of surveyor, plan was prepared and delivery was effected with police assistance, by the Amin deputed from the Court by handing over the property to the petitioner. The party respondents tried everything within their might to thwart the attempt of the petitioner to get the property delivered. Twice they reached this Court with Regular Second Appeals challenging the order of the trial court and the first appellate court. When the Amin went for delivery of the property with the Surveyor, the party respondents with the assistance of some female members of their family caused obstruction and execution court had to order police protection to the Amin for delivery of the property to the petitioner. After having failed in all their attempts with the prolonged litigation for two decades, the party respondents instigated a relative of theirs to file yet another suit to undo what has been done in Exts.P1 and P4, but _WP(C)6691/2018_ 11 failed again. It is also interesting to note that it is not the plaintiff in Ext.R6(a) judgment, who challenged the dismissal of the partition suit filed by the petitioner. But it was the party respondents, who had filed the appeal against Ext.R6(a) judgment as Ext.R6(b), still pending before the Sub Court, Perumbavoor as A.S.No.19/2017. It is strange that conceding a share to Kamalakshi, the plaintiff in O.S.No.365/2005, would only reduce the share of the party respondents. The respondents claim that they are not affected by such reduction in share, as they had purchased the share of some other legal heirs of their grand-father Ayyappan. They are preparing themselves for another bout of litigation, with expectations that it would again last for another two decades, and thus frustrate the dreams of the petitioner to enjoy the fruits of the decree she has been so anxiously waiting for. The party respondents were also attempting to impress upon the police authorities that the dispute is civil in nature and they have no business in the matter and if at all the petitioner has any grievance, she has to approach the civil court once again and that the dispute will attain finality only on disposal of Ext.R6(b) litigation. _WP(C)6691/2018_ 12 7. It has to be examined whether this Court should interfere and direct police protection to the petitioner so as to enable her to enter and enjoy her property, which was delivered to her as per Ext.P1. In the instant case, civil rights of the parties have been determined and the property was delivered by the Amin with police assistance to the petitioner as per Ext.P1, the party respondents did not raise the contention while contesting for two decades that the property does not belong to their father Narayanan, but to their grand-father Ayyappan and that there are legal heirs also who have partible interest in the property. We find support in the decision in Illyas T.S. v. State of Kerala, 2014 KHC 647 , wherein a Division Bench of this Court held as thus:- “Petitioner has obtained a decree of Civil Court and after delivery of property in execution proceedings the respondents have trespassed into the said property which is in gross violation of the decree passed. Persons who do not obey the judgment of the Civil Court cannot insist that the petitioner should again be driven to the Civil Court for recovery of possession of his property. Under such circumstances, we are of the view that the writ petition is to be allowed.” The situation in hand is similar to the facts of the above-said decision. The petitioner herein was already delivered the property, _WP(C)6691/2018_ 13 but she is being obstructed from entering into the property and enjoying the same, despite she having valid title as per Exts.P1 and P4. Under the circumstances, we find that this is a fit case where police protection has to be ordered as prayed for. Hence, respondents 2 and 3 are directed to provide sufficient, adequate and meaningful protection to the petitioner and her men for entering and enjoying the property delivered to her as per Ext.P1 and also ensure maintenance of law and order and take appropriate action against the party respondents on any complaint received from the petitioner. With the above directions the Writ Petition is allowed. No costs. Sd/K. VINOD CHANDRAN Judge Sd/ASHOK MENON Judge dkr