Shihabudeen and Sulfia v. Sub Inspector of Police, Kallambalam Police Station, Kallambalam, Thiruvananthapuram-695605, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941 WP(C).No.17023 of 2019** ## **PETITIONERS:** - **1 SHIHABUDEEN, AGED 67 YEARS, S/O.ABDUL AZEEZ, RESIDING AT KALLUVILA VEEDU, KANIYANKONAM, KUDAVOOR VILLAGE, KUDAVOOR DESOM.** - **2 SULFIA, AGED 31 YEARS, D/O.SHIHABUDEEN, RESIDING AT KALLUVILA VEEDU, KANIYANKONAM, KUDAVOOR VILLAGE, KUDAVOOR DESOM.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU** ## **RESPONDENTS:** - **1 THE SUB INSPECTOR OF POLICE KALLAMBALAM POLICE STATION, KALLAMBALAM, THIRUVANANTHAPURAM-695 605.** - **2 SAJNA, W/O.HAMSA, RESIDING AT KULAMBUVILA VEEDU, MADANTHAPACHA, KUDAVOOR DESOM AND VILLAGE, THIRUVANANTHAPURAM-695 313.** - **3 HAMSA, H/O. SAJNA, RESIDING AT KULAMBUVILA VEEDU, MADANTHAPACHA, KUDAVOOR DESOM AND VILLAGE, THIRUVANANTHAPURAM-695 313.** - **4 SUBAIDA BEEVI, S/O.SALIHAUMMA, RESIDING AT A.S.MANZIL, MADANTHAPACHA, DECENT MUKKU P.O., KALLAMBALAM, THIRUVANANTHAPURAM-695 605.** 2 WP(C)17023 OF 2019 - **5 SAJEEB, S/O.MOHAMMED ISMAIL, RESIDING AT KALLUVILA VEEDU, MADANTHAPACHA, KALLAMBALAM, THIRUVANANTHAPURAM-695 605.** - **6 SIYARKHAN, S/O.ABDUL AZEEZ, RESIDING AT KULAMBUVILA VEEDU, MADANTHAPACHA, KALLAMBALAM, THIRUVANANTHAPURAM-695 605.** ## **SRI P.P THAJUDHEEN SR GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 WP(C)17023 OF 2019 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioners, who are the plaintiffs in O.S.No.463 of 2013 on the file of the Munsiffs' Court, Varkala, which is one filed seeking permanent prohibitory injunction against respondents 2 to 4 from trespassing into plaint schedule property, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent Sub Inspector of Police to consider Ext.P4 complaint dated 15.06.2019 on merits and take appropriate steps to render adequate police protection to the life of the petitioners and to enable them to enjoy their property covered by Ext.P2 common judgment of the Munsiffs' Court dated 29.03.2019 in O.S. No.463 of 2013 filed by the petitioners and O.S.No.468 of 2013 filed by respondents 3 and 4 herein, without any hindrance from respondents 2 to 6. The petitioners have also sought for a writ of mandamus commanding the 1[st] respondent to ensure that respondents 2 to 6 and their men do not change the nature of the property by trespassing into that property, in view of the said judgment. 4 WP(C)17023 OF 2019 2. Going by the averments in the writ petition, in O.S.No.463 of 2013 filed by the petitioners, the Munsiffs' Court granted a temporary injunction in their favour, as per Ext.P1 order dated 08.11.2013, which was in force throughout the suit. The said suit was tried along with O.S.No.468 of 2013, which is one filed by respondents 3 and 4, seeking permanent prohibitory injunction against the petitioners herein, in respect of plaint C schedule property. The Munsiffs' Court ordered joint trial of both the suits, considering O.S.No.463 of 2013 as the leading case. By Ext.P2 judgment dated 29.03.2019, the Munsiffs' Court dismissed O.S.No.463 of 2013 filed by the petitioners herein with costs on a finding that the defendants in that suit have succeeded in establishing the existence of the pathway through the southern boundary of the plaint schedule property. The Munsiffs' Court decreed O.S.No.468 of 2013 filed by respondents 3 and 4 herein with costs and the 2[nd] petitioner herein, who is the 1[st] defendant in that suit, her men or agents are permanently restrained from obstructing plaint C schedule pathway in that suit or from converting plaint C schedule pathway as part and parcel of their property, or from 5 WP(C)17023 OF 2019 committing any acts of waste or damage therein. The petitioners obtained certified copy of Ext.P2 judgment on 17.06.2019. They want to prefer an appeal against that judgment and the files are entrusted to their counsel at Thiruvananthapuram. 3. According to the petitioners, respondents 2 to 4 have trespassed into their compound on 15.06.2019 and started construction of a pathway at a width of 1.5 meters. They have resorted to the help of respondents 5 and 6 and threatened the petitioners with dire consequences. The document marked as Ext.P3 is stated to be the photographs of the property depicting the factual situation. The petitioners approached the 1[st] respondent by submitting Ext.P4 complaint dated 15.06.2019 seeking police protection to their life and property and thereafter, moved this Court, seeking various reliefs. 4. Heard the learned counsel for the petitioners and also the learned Government Pleader appearing for the 1[st] respondent. 5. As evident from Ext.P2 common judgment, O.S.No.463 of 2013 filed by the petitioners seeking permanent 6 WP(C)17023 OF 2019 prohibitory injunction against respondents 2 to 4 stands dismissed on a finding that the defendants in that suit have succeeded in establishing the existence of the pathway through the southern boundary of plaint schedule property. The Munsiffs' Court decreed O.S.No.468 of 2013 filed by respondents 3 and 4 herein, whereby the 2[nd] petitioner herein and her men or agents are permanently restrained from obstructing plaint C schedule pathway in that suit or from converting plaint C schedule pathway as part and parcel of their property or from committing any acts of waste or damage therein. If the petitioners are feeling aggrieved by Ext.P2 judgment of the Munsiffs' Court, it is for them to approach the Appellate Court, by filing an appeal, along with an application for interim relief. 6. In paragraph 3 of the writ petition, it is averred that, on 15.06.2019, respondents 2 to 4 trespassed into the compound of the petitioners and started construction of a pathway at a width of 1.5 meters. They have resorted to the help of respondents 5 and 6 and threatened the petitioners with dire consequences. However, Ext.P4 complaint dated 15.06.2019 filed by the 1[st] petitioner before the 1[st] respondent 7 WP(C)17023 OF 2019 Sub Inspector of Police does not contain any specific averments regarding the incident alleged to have occurred on 15.06.2019. In the said complaint, the 1[st] petitioner has not made any specific averments as to the alleged threat to the life of the petitioners, at the hands of respondents 2 to 6. 7. In **Bharat Singh v. State of Haryana [(1988) 4 SCC 534]** the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counteraffidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to 8 WP(C)17023 OF 2019 be pleaded and annexed to it. 8. In such circumstances, conclusion is irresistible that the petitioners have not made out a case warranting interference, in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. In the result, this writ petition fails and the same is accordingly dismissed. Sd/- **K. VINOD CHANDRAN JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 9 WP(C)17023 OF 2019 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE INTERIM ORDER IN IA NO.3524/2013 IN O.S.NO.463/2013 ON THE FILE OF THE COURT OF THE MUNSIFF, VARKALA DATED 08.11.203.** **EXHIBIT P2 TRUE COPY OF THE COMMON JUDGMENT IN O.S.NO.463/2013 AND 468/2013 ON THE FILE OF THE COURT OF THE MUNSIFF, VARKALA DATED 29.03.2019.** **EXHIBIT P3** **TRUE COPY OF FEW PHOTOGRAPHS DEPICTING THE FACTUAL SITUATION DATED NIL.** **EXHIBIT P4 TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT DATED 15.06.2019.** ## **RESPONDENT'S EXHIBITS:NIL** **TRUE COPY** ## **P.A. TO JUDGE**