Priji v. Director General of Police and others

W.P.(C).No.40160/2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 27[TH] DAY OF JANUARY 2023 / 7TH MAGHA, 1944 WP(C) NO. 40160 OF 2022** ## **PETITIONER:** PRIJI AGED 47 YEARS D/O SIVADASAN, KUNNADIYIL VEEDU KULATHOOR P O., ATTIPRA VILLAGE THIRUVANANTHAPURAM - PIN - 695583 BY ADVS. M.R.ANANDAKUTTAN M.HEMALATHA MAHESH ANANDAKUTTAN M.J.SAJITHA ## **RESPONDENTS:** 1 THE DIRECTOR GENERAL OF POLICE OFFICE OF THE DIRECTOR GENERAL OF POLICE, HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-, PIN - 695014 2 THE COMMISSIONER OF POLICE OFFICE OF THE COMMISSIONER OF POLICE VAZHUTHACAUD, THIRUVANANTHAPURAM., PIN - 695014 3 THE STATION HOUSE OFFICER THUMBA POLICE STATION, THUMBA. P.O THIRUVANANTHAPURAM., PIN - 695583 W.P.(C).No.40160/2022 2 4 SURESH BABU AGED 42 YEARS S/O GOPALAN, KUNNADIYIL VEEDU KULATHOOR.P.O, ATTIPRA VILLAGE THIRUVANANTHAPURAM. PIN - 695583 5 SUNITHA AGED 35 YEARS W/O SURESH BABU, KUNNADIYIL VEEDU, KULATHOOR P O ATTIPRA VILLAGE, THIRUVANANTHAPURAM. PIN - 695583 6 SATHYASEELAN AGED 65 YEARS F/O SUNITHA, KUNNADIYIL VEEDU KULATHOOR. P.O, ATTIPRA VILLAGE THIRUVANANTHAPURAM. PIN - 695583 7 SASIKUMARI AGED 57 YEARS W/O SATHYASEELAN KUNNADIYIL VEEDU, KULATHOOR P O ATTIPRA VILLAGE, THIRUVANANTHAPURAM. PIN - 695583 BY ADVS. G.RAJEEV REJITH RAJENDRAN AJITH KUMAR.S ASWANI P.S. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2023, THE COURT ON 27.01.2023 DELIVERED THE FOLLOWING: W.P.(C).No.40160/2022 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).No.40160 of 2022 = = = = = = = = = = = = = = = = Dated this the 27[th] day of January, 2023** ## **JUDGMENT** - 1.This writ petition is filed seeking direction to respondents 1 to - 3 to consider Exhibit P2 and afford adequate protection to the life and property of the petitioner as against respondents 4 to 7 and their associates. - 2.Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for respondents 4 to 7. 3. It is submitted by the learned counsel for the petitioner that the petitioner is in possession of 1.750 cents of property in Survey No.2194 of Attipra village. It is stated that the petitioner had larger extents of property in her possession and that after acquisition of part of the property for the National Highway, the rest of the property lies in a triangular shape with the tapering end towards north. The petitioner and her W.P.(C).No.40160/2022 4 mother are residing in a small building in the property. It is stated that the property of the petitioner is bounded by boundary walls and that respondents 4 to 6 had been attempting to use the northern yard for access to their property. It is submitted that the petitioner had filed a suit and Exhibit P1 judgment was rendered restraining the defendants therein from making use of the northern open yard of the plaint schedule property as vehicular entry from the western National Highway to the eastern property of the defendants and also from doing anything which will affect or restrict or reduce the plaintiff's user of the plaint schedule property. It is submitted that when the injunction was violated and the petitioner and her mother were harassed, threatened and abused, the petitioner had approached the police, but no steps were taken on the complaints submitted by them, which is why this writ petition has been filed. 4. A counter affidavit has been placed on record by respondents 4 to 7 contending that the entire exercise of identification of the property and the issuance of a decree has been carried out without considering the land acquisition sketch and that W.P.(C).No.40160/2022 5 therefore there is serious error in the identification of the property concerned. It is submitted that there is a 3.20m open space on the northern side of the petitioner's property which is outside the compound wall and that it is the said stretch which is being used by the respondents as access to their property. It is submitted that even going by the contentions of the petitioner, there is no encroachment whatsoever into their property, which even according to them is a triangular plot and the prayers in the writ petition are completely mischievous and are intended to transgress beyond the scope of Exhibit P1 decree and to harass the contesting party respondents. 5. It is submitted that an appeal has been preferred as against the decree and that the same is pending as A.S.No.279 of 2022 before the District Court, Thiruvananthapuram. It is submitted that since the matter is still sub judice, the prayers, as sought for, cannot be granted. 6. The learned counsel would also contend that due to the nature of the dispute, this is a fit case where the petitioner ought to have filed an execution petition before the trial court and the W.P.(C).No.40160/2022 6 attempt in the writ petition is to gain due advantage which is not conferred by the decree. The learned counsel for the respondent also relied on the decisions of this Court in **Kochu Pennu Ambujakshi and another v. Velutha Kunju Vasu Channar** **and others** [1992 KHC 27], **M.G.Ajayakumar v. State of Kerala and others** [2008 (1) KHC 461] and of the **Madras High Court in Naina Mohamed v. Superintendent of Police and others** [2020 KHC 2787] . 7. Having considered the contentions advanced on all sides, I am of the opinion that the decree is liable to be honoured unless and until it is varied by the appellate court. However, the petitioner cannot seek the enforcement of any right over and above what is specifically provided in the decree. In view of the submission made by the learned counsel for respondents 5 to 7 that they are not violating the decree and are not taking any vehicles through the open yard on the northern side of the petitioner's property at present, I am of the opinion that the relief of police protection need not be granted at this relevant time. It is sufficient to record the submission made by the learned counsel for respondents 5 to 7 that the vehicles are not W.P.(C).No.40160/2022 7 being taken through the northern side of the petitioner's property in compliance with the decree at present. However, all the contentions of the parties on the lie and nature of the property are left open to be decided in appeal. Needless to say, in case the decree is varied in appeal or any interim orders are passed by the appellate court, the parties shall abide by the same. **==> picture [24 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.40160/2022 8 ## **APPENDIX OF WP(C) 40160/2022** PETITIONER EXHIBITS - Exhibit-P1 TRUE COPY OF THE JUDGMENT DATED 31-082022 IN O.S. NO. 2482 OF 2015 OF THE 1ST ADDITIONAL MUNSIFF'S COURT OF THIRUVANANTHAPURAM - Exhibit-P2 TRUE COPY OF THE POLICE COMPLAINT ENDT. NO. G9/83961/2022/TC BEFORE THE SHO, THUMBA POLICE STATION DATED 17.11.22 - Exhibit-P3 TRUE COPY OF THE ACKNOWLEDGEMENT OF THE COMPLAINT 17-11-2022 FILED BEFORE THE 1ST RESPONDENT - Exhibit-P4 TRUE COPY OF THE COMMISSION REPORT IN O. S. NO. 2482 OF 2015 BEFORE THE 1ST ADDITIONAL MUNSIFF'S COURT OF THIRUVANANTHAPURAM RESPONDENT EXHIBITS Exhibit R4(A) TRUE COPY OF THE PLAINT DATED 17/12/2015 I O.S 2482/2015, FILED BY THE PETITIONER, BEFORE THE 1ST ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM Exhibit R4(B) TRUE COPY OF THE COMMISSION REPORT (EX PARTE) DATED 15/02/2016, ALONG WITH THE ROUGH SKETCH, PREPARED AT THE INSTANCE OF THE PETITIONER IN EXHIBIT-R4(A) SUIT Exhibit R4(C) TRUE COPY OF THE COMMISSION REPORT AND THE MEASUREMENT SKETCH, DATED 25/09/2018, PREPARED BY THE SAME ADVOCATE COMMISSIONER IN EXHIBIT-R5(A) SUIT W.P.(C).No.40160/2022 9 Exhibit R4(D) TRUE COPY OF THE APPEAL MEMORANDUM DATED 14/11/2022 IN A.S 279/2022 ON THE FILES OF THE DISTRICT COURT, THIRUVANANTHAPURAM, PREFERRED BY THESE RESPONDENTS, AGAINST EXHIBIT-P1 JUDGMENT True copy PS to Judge