Sajitha S.V. 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 V.G.ARUN** **THURSDAY, THE 27TH DAY OF JUNE 2019 / 6TH ASHADHA, 1941** **WP(C).No.9937 of 2019** ## **PETITIONER/S:** **SAJITHA S.V., AGED 30 YEARS D/O.VILASINI M., RESIDING AT KADAYARPUTHENVEEDU, KANJIRAMKULAM POST, THIRUVANANTHAPURAM DISTRICT - 695 524.** **BY ADVS. SRI.G.P.SHINOD SRI.AJIT G.ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.RAM MOHAN.G.** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY HOME SECRETARY, SECRETARIAT, GOVERNMENT OF KERLA, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR GENERAL OF POLICE, OFFICE OF THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM - 695 001.** - **3 THE SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM RURAL DISTRICT, THIRUVANANTHAPURAM - 695 004.** - **4 THE DEPUTY SUPERINTENDENT OF POLICE, OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 121.** W.P.(C) No.9937 of 2019 2 - **5 THE CIRCLE INSPECTOR OF POLICE, POOVAR POLICE STATION, POOVAR POST, THIRUVANANTHAPURAM DISTRICT - 695 525.** - **6 THE SUB INSPECTOR OF POLICE, KANJIRAMKULAM POLICE STATION, KANJIRAMKULAM POST, THIRUVANANTHAPURAM - 695 524.** - **7 DAYANANDAN @ SELVAN, AGED 62 YEARS, S/O.LATE CHELLAYYAN NADAR, SUNEESH BHAVAN, KIZHAKATHIL VEEDU, KANJIRAMKULAM POST, THIRUVANANTHAPURAM DISTRICT - 695 524.** - **8 SUBHASH, S/O.DAYANANDAN, AGED 30 YEARS, SUNEESH BHAVAN, KIZHAKATHIL VEEDU, KANJIRAMKULM POST, THIRUVANANTHAPURAM DISTRICT - 695 524.** - **9 SUNEESH, S/O.DAYANANDAN, AGED 28 YEARS, SUNEESH BHAVAN, KIZHAKATHIL VEEDU, KANJIRAMKULAM POST, THIRUVANANTHAPURAM DISTRICT - 695 524.** **BY ADV. SRI.G.S.REGHUNATH** **OTHER PRESENT:** **SR.GP-SRI.P.P. THAJUDEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.9937 of 2019 3 ## **JUDGMENT** ## V.G.ARUN, J. The petitioner and her mother are in absolute ownership and possession of the property comprised in Re-Sy.No.220/14 of Kanjiramkulam Village in Thiruvananthapuram District, wherein they have constructed a three-storied building. The 7[th] respondent purchased the adjacent property lying on the western boundary of the petitioner's property, comprised in Re-Sy.No. 220/10. According to the petitioner, the boundary wall separating her property from that of the 7[th] respondent, is only partially constructed and taking advantage of this situation, the 7[th] respondent, along with his sons, respondents 8 and 9 herein attempted to trespass into the property of the petitioner and alter the boundary. It is submitted that there was a dispute between the petitioner, her mother and the vendor of the 7[th] respondent which had led to the petitioner W.P.(C) No.9937 of 2019 4 and mother filing O.S.No.1085 of 2013 before the First Additional Munsiff's Court, Neyyattinkara. Though an interim injunction was sought in the suit, the same being declined, the petitioner and her mother filed CMA No.22 of 2014 before the Sub Court, Neyyattinkara, which resulted in Ext.P2 order. By Ext.P2 order, the vendor of the 7[th] respondent was restrained from committing mischief in the plaint scheduled property, from making construction therein and from putting up a boundary wall between the properties of the plaintiffs and the defendant. As evident from Ext.P2, the Sub Court declined to grant temporary injunction against trespass. According to the petitioner, after purchasing the property on the western side, respondents 7 to 9 attempted to effect construction and to alter the boundary in violation of Ext.P2 order. When this was questioned, petitioner's mother was assaulted leading to Crime No.224 of 2019 being registered at the Kanjiramkulam W.P.(C) No.9937 of 2019 5 Police Station against respondents 7 to 9 and their employee. It is submitted that in view of the repeated attempts to trespass into petitioner's property and to alter its boundary, the petitioner has filed O.S.No.287 of 2019 against respondents 7 to 9 and the same is pending before the Munsiff's Court, Neyyattinkara. It is alleged that despite the registration of Ext.P3 FIR, the police failed to provide necessary protection to the life and property of the petitioner, which is under constant threat from respondents 7 to 9. 2. A detailed counter affidavit has been filed by respondents 7 to 9 refuting the allegations in the writ petition and further contending that the attempt through the writ petition is to force the Police to intervene in a civil dispute pertaining to a pathway having a width of one metre on the western side of the 3 ½ cents purchased by the 7[th] respondent, which is illegally encroached upon by the petitioner and her W.P.(C) No.9937 of 2019 6 mother. It is submitted that the petitioner and her mother are bent upon obstructing any construction in the property purchased by the 7[th] respondent. It is pointed out that even though the petitioner and her mother filed O.S.No.861 of 2001 against the vendor of the 7[th] respondent, the suit was ultimately dismissed. It was thereafter that O.S.No.1085 of 2013 was filed, in which Ext.P2 order was passed by the appellate court. The specific case of respondents 7 to 9 is that the dispute between them and the petitioner is only a civil dispute and there is no cause for the petitioner to claim any police protection from this Court. It is submitted that on 27.3.2019, respondents 7 and 8 were attacked by the petitioner and her mother, regarding which the 7[th] respondent had lodged a complaint before the Kanjiramkulam Police. Since, the Police did not register a case based on the complaint, the 7[th] respondent filed a private complaint before W.P.(C) No.9937 of 2019 7 the jurisdictional magistrate court and on the complaint being referred to the Police under Section 156 (3) Cr.P.C, Crime No.305 of 2019 has been registered at the Kanjiramkulam Police, as evidenced by Ext.R7(e). Reference is also made to O.S.No.1128 of 2013 filed by the respondent's vendor against the petitioner and her mother. 3. The learned Senior Government Pleader submits on instructions that the parties are at logger heads over the exact location of the boundary between their properties and the set back to be provided while constructing buildings in their respective properties. It is submitted that criminal cases have been registered against both parties and investigation is in progress. It is also pointed out that after watching the CC TV footage of the incident which occurred on 11.03.2019, the Police are of the _prima facie_ impression that the incident in Crime No.224 of 2019 did not occur in the manner stated by W.P.(C) No.9937 of 2019 8 the petitioner's mother who is the de facto complainant. The learned Senior Government Pleader submits that the attempt through the writ petition is to get reliefs, which the petitioner would not be able to obtain from the civil court. 4. We have no doubt in our mind that what is being projected through the writ petition is purely a civil dispute between the petitioner and respondents 7 to 9. In fact, the 7[th] respondent had earlier approached this Court seeking similar reliefs against the petitioner and her mother. That writ petition was dismissed under Ext.P1 judgment, without prejudice to the rights and liberties of the 7[th] respondent to resolve the dispute before a competent civil court, in accordance with law. We find no reason to take a different view in the case of the petitioner. We are fortified in our view by the decision of the Apex Court in **P.R.Murlidharan and others v. Swami Dharmananda Theertha Padar and others** W.P.(C) No.9937 of 2019 9 **[(2006) 4 SCC 501]** , wherein it is held that the jurisdiction of the civil court being wide and plenary, a writ proceeding cannot be a substitute for a civil suit. Needless to say, if any law and order situation arises, that will be dealt with by the Police in accordance with law, for which no specific direction need be issued by this Court. For the foregoing reasons, we find no merit in the writ petition and accordingly the writ petition is dismissed. No order as to costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/27.6 W.P.(C) No.9937 of 2019 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 28/02/2019 IN WPC NO.5215 OF 2019 OF THIS HONOURABLE COURT.** - **EXHIBIT P2 A TRUE COPY OF THE JUDGMENT DATED 08/12/2017 IN CMA NO.22/2014 OF THE COURT OF THE SUB JUDGE, NEYYATTINKARA.** - **EXHIBIT P3 A TRUE COPY OF THE F.I.R. IN CRIME NO.224 OF 2019 REGISTERED IN KANJIRAMKULAM POLICE STATION.** - **EXHIBIT P4 TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE CHIEF MINISTER OF KERALA.** - **EXHIBIT P5 A TRUE COPY OF OS NO.287 OF 2019 PREFERRED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, NEYYATTINKARA.** - **EXHIBIT P6 A TRUE COPY OF THE OP TICKET ISSUED BY GENERAL HOSPITAL, NEYYATTINKARA.** - **EXHIBIT P7 A TRUE COPY OF THE COMPLAINT DATED 01/04/2019 PREFERRED BY THE PETITIONER BEFORE THE 5TH RESPONDENT/CIRCLE INSPECTOR.** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R7(A) TRUE COPY OF THE SETTLEMENT DEED DATED 23.1.2013** - **EXHIBIT R7(B) TRUE COPY OF THE BASIC TAX RECEIPT** W.P.(C) No.9937 of 2019 11 ## **DATED 2.4.2013 ISSUED IN THE NAME OF THE PETITIONER** **EXHIBIT R7(C) PHOTOGRAPH SHOWING THE LIE OF THE PROPERTY** - **EXHIBIT R7(D) TRUE COPY OF THE C.M.P DATED 4.4.2019 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III NEYYATTINKARA** - **EXHIBIT R7(E) TRUE COPY OF THE FIR NO.305/2019 OF KANJIRAMKULAM POLICE STATION** - **EXHIBIT R7(F)** - **TRUE COPY OF THE PLAINT IN OS NO 1085/2013 DATED 22.11.2013 ON THE FILE OF MUNSIFF'S COURT, NEYYATTINKARA** - **EXHIBIT R7(G)** - **TRUE COPY OF THE WRITTEN STATEMENT FILED BY THIS RESPONDENTS VENDOR IN OS NO 1085/2013 DATED 6.6.2015** - **EXHIBIT R7(H)** - **TRUE COPY OF THE PLAINT IN OS NO 1128/2013 ON THE FILES OF MUNSIFF'S COURT, NEYYATTINKARA DATED 29.11.2013 FILED BY THIS RESPONDENT'S VENDOR** **EXHIBIT R7(I)** **TRUE COPY OF THE COMMISSION REPORT IN OS NO 1128/2013 ON THE FILES OF MUNSIFFS COURT, NEYYATTINKARA DATED 13.1.2016** **EXHIBIT R7(J)** **TRUE COPY OF THE SALE DEED IN THE NAME OF THE RESPONDENT DATED 11.2.2019.**