Sukumari Amma v. Commissioner of Police, Thiruvananthapuram-1; Circle Inspector of Police, Vattiyoorkavu; Sub Inspector of Police, Vattiyoorkavu; Pradeep; Syamala Amma; Chandra Prabha; Vijaya Kumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE V.CHITAMBARESH WEDNESDAY, THE 14TH DAY OF MARCH 2012/24TH PHALGUNA 1933 WP(C).No. 5680 of 2012 (H) -------------------------- PETITIONER(S): ------------SUKUMARI AMMA AGED 70 YEARS D/O.LATE RAMAN PILLAI & W/O.LATE VASUDEVAN NAIR REMA DEVI MANDIRAM, T.C.6/2580 THITTAMANGALAM,KODUNGANOOR.P.O,VATTIYOORKAVU THIRUVANANTHAPURAM-695013. BY ADVS.SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT(S): -------------- 1. THE COMMISSIONER OF POLICE THIRUVANANTHAPURAM-1. 2. THE CIRCLE INSPECTOR OF POLICE, VATTIYOORKKAVU,THIRUVANANTHAPURAM-695013. 3. THE SUB INSPECTOR OF POLICE, VATTIYOORKAVU,THIRUVANANTHAPURAM-695013. 4. SRI.PRADEEP, AGED ABOUT 40 YEARS,S/O.GANGADHARAN,MELEPUTHEN VEEDU KOLLAMKONAM,PEYAD.P.O,THIRUVANANTHAPURAM PIN-695573. 5. SMT.SYAMALA AMMA, POURNAMI,CHENCHUKONAM,ALAKUNNAM PEYAD.P.O, THIRUVANANTHAPURAM-695573. 6. SMT.CHANDRA PRABHA, POURNAMI,CHENCHUKONAM,ALAKUNNAM PEYAD.P.O, THIRUVANANTHAPURAM-695573. 7. SRI.VIJAYA KUMAR, - POURNAMI,CHENCHUKONAM,ALAKUNNAM PEYAD.P.O, THIRUVANANTHAPURAM-695573. R4 to R7 BY SRI.R.T.PRADEEP R1 to R3 BY GOVERNMENT PLEADER SRI.SUSHEEL JOSEPH CYRIAC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.5680 of 2012 PETITIONER(S) EXHIBITS - EXT.P1 TRUE COPY OF THE IDENTITY CARD ISSUED BY ELECTION COMMISSION OF INDIA TO THE PETITIONER. - EXT.P2 TRUE COPY OF THE EXTRACT OF THE PASSPORT ISSUED TO THE PETITIONER. - EXT.P3 TRUE COPY OF THE EXTRACT OF THE VOTERS LIST OF VATTIYOORKAVU ASSEMBLY CONSTITUENCY. - EXT.P3A TRUE COPY OF THE ENGLISH TRANSLATION OF EXTRACT OF THE VOTERS LIST OF VATTIYOORKAVU ASSEMBLY CONSTITUENCY. - EXT.P4 TRUE COPY OF THE EXTRACT OF THE FAMILY DIRECTOR OF THITTAMANGALAM RESIDENTS ASSOCIATION. - EXT.P5 TRUE COPY OF THE RECEIPT DATED 25-2-2011 ISSUED BY THE KSEB. EXT.P6 TRUE COPY OF RECEIPT DATED 7-9-2011 ISSUED BY KSEB. EXT.P7 TRUE COPY OF RECEIPT DATED 13-12-2011 ISSUED BY KWA. EXT.P8 TRUE COPY OF RECEIPT DATED 16-3-2011 ISSUED BY CORPORATION OF THIRUVANANTHAPURAM. - EXT.P9 TRUE COPY OF THE DOCUMENT NO. 1685/1965 OF CHALA SRO. EXT.P9A TRUE COPY OF THE FREE ENGLISH TRANSLATION OF DOCUMENT NO. 1685/1965 OF CHALA SRO. - EXT.P10 TRUE COPY OF THE JUDGMENT DATED 15-9-2004 IN S.A. NO. 377/2000 OF THIS HON'BLE COURT. - EXT.P11 TRUE COPY OF THE ORDER DATED 27-1-2007 IN I.A. NO. 4477/2001 IN O.S. NO. 1297/1977 OF 1ST ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. - EXT.P12 TRUE COPY OF THE ORDER DATED 30-6-2009 IN I.A. NO. 4471/2001 IN O.S. NO. 1297/1979 PASSED BY IST ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. - EXT.P13 TRUE COPY OF THE SALE DEED NO. 625/1983 OF SASTHAMANGALAM SRO. - EXT.P13A TRUE COPY OF THE FREE ENGLISH TRANSLATION OF SALE DEED NO. 625/1983 OF SASTHAMANGALAM SRO. - EXT.P14 TRUE COPY OF THE JUDGMENT DATED 7-12-1989 OF IIND ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. - EXT.P15 TRUE COPY OF THE SKETCH PREPARED BY THE ADVOCATE COMMISSIONER IN O.S. NO. 1035/1986 OF THE 2ND ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM. - EXT.P16 TRUE COPY OF THE ORDER DATED 29-7-2006 IN I.A. 3045/2002 IN O.S. NO. 1035/1986 PASSED BY THE 2ND ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. - EXT.P17 TRUE COPY OF THE FINAL DECREE IN O.S. NO. 1035/1986 PASSED BY THE II ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM. - EXT.P18 TRUE COPY OF THE COMPLAINT DATED 18-12-2011 SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT. - EXT.P18A TRUE COPY OF THE ENGLISH TRANSLATION OF COMPLAINT DATED 1812-2011 SUBMITTED BY PETITIONER BEFORE 3RD RESPONDENT. - EXT.P19 TRUE COPY OF THE COMPLAINT DATED 20-12-2011 SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT. - EXT.P19A TRUE COPY OF THE ENGLISH TRANSLATION OF COMPLAINT DATED 2012-2011 SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT. - EXT.P20 TRUE COPY OF THE RECEIPT DATED 20-12-2011 ISSUED BY THE OFFICE OF 1ST RESPONDENT. ## RESPONDENTS' EXHIBITS NIL. //TRUE COPY// P.S. To judge. ## **MANJULA CHELLUR, Ag.C.J. & V.CHITAMBARESH, J.** ------------------------------- ## **W.P.(C) No.5680 of 2012** ------------------------------- **Dated this the 14[th] day of March, 2012** ## **J U D G M E N T** Manjula Chellur, Ag.C.J. Heard the learned counsel appearing for the petitioner as well as the learned Government Pleader. In brief, the case of the petitioner is as under: 2. According to the petitioner, the property in question was taken on mortgage by her husband in the year 1965 for a period of 12 years. On completion of the mortgage period, a suit for redemption came to be filed redeeming the mortgage which was decreed in favour of the mortgagors. Subsequently, the appeal filed by the petitioner also came to be dismissed. The final decree application filed by the mortgagors was also dismissed. The fact remains, a residential house came to be put up on the property by the husband of the petitioner and they were all living in the said house along with their children. Subsequently, two cents of the property came to be purchased by the petitioner from the legal heir of one mortgagor, i.e., Balakrishnan Nair along with the right to W.P.(C) No.5680 of 2012 2 settle the mortgage claim. Thereafter a final decree came to be passed wherein a Court Commissioner was appointed for measurement and demarcation of the property. The residential building of the petitioner is situated in the said property having an extent of 2.016 cents. 3. According to the petitioner, she was residing with her daughter a few kilometers away from the property in question and during the said period, especially on 18.12.2011, respondents 4 to 7 have trespassed into the residential house of the petitioner and destroyed all the articles kept there. Therefore, the petitioner had to approach the police seeking protection. The complaint of the petitioner is that no case came to be registered and the respondents are allowed to continue in possession of the property without any semblance of right. A writ of mandamus is sought in this case directing the police to allow the petitioner to enter the property and reside peacefully therein. 4. Notice were issued to the party respondents and W.P.(C) No.5680 of 2012 3 in response to the notice, the party respondents have appeared. According to the learned counsel representing the party respondents, so far as the title over the building in question is concerned, they admit that it belongs to the petitioner. But according to them, they are ready to purchase the said portion of the property or they would vacate the premises after constructing a house in the vacant space behind the house in question. The fact remains, when petitioner was in jurisdical possession of the property as owner of the property, she was in charge and control of the property in question. Her physical presence in the property need not be there. But with the knowledge that the petitioner alone has a right to be in possession and enjoyment of that property, if any one has entered into that property, it would definitely amount to criminal trespass. Police are bound to register and initiate criminal action, if it attracts any of the provisions of Indian Penal Code. So far as the statement of the Government Advocate that the petitioner wanted the party respondents to be evicted from the W.P.(C) No.5680 of 2012 4 property, we are afraid, that cannot be ordered in view of Section 6 of the Specific Relief Act and the petitioner has to seek for possession of the property before a civil court. 5. The learned counsel for the petitioner relies upon paragraph 12 of the decision reported in **M/s.Harrisons Malayalam Ltd. v. State of Kerala** (2007 (4) KLT 540) which is as under:- 12. We notice with respect the above views, but we are of the opinion that if a person disobeys a law, whatever be the motivation for the same, the law must take its own course. The police have a duty in the light of the provisions in the Criminal Procedure Code and the Kerala Police Act referred to by the learned senior counsel for the petitioner, to maintain law and order and avert breach of peace. Threat to the lives of the citizens has also to be averted. If a large group of persons having no semblance of right over a property encroach into it and commit mischief, the owner is entitled to get the help of the police to protect his property. In such circumstances, the filing of a civil suit is not an efficacious remedy. So, when the police are under such a duty and it is shown that they have failed to perform its duty in this regard, then, normally, a writ in the nature of mandamus will W.P.(C) No.5680 of 2012 5 be issued by this Court. It is contended with reference to the above that police can be directed to handover vacant possession of the property. The facts and circumstances under which such direction came to be given by this Court are entirely different from the facts and circumstances of the present case. In this said case, it was a rubber plantation where 100s of people encroached upon the property of a company, then this Court said, the police have a duty to see that property of the company is protected. In the case at hand, no doubt, the petitioner and the party respondents are related to each other and they have a separate legal entity as owners of the property and no one can usurupt the rights of the other in a manner not known to law. Therefore, we dispose of the writ petition directing the respondent police to look into the complaint of the petitioner and so also the admission made by the counsel for the respondents before the Court that in June, 2011, they have occupied the premises by oral consent of the petitioner and her daughters, 6 W.P.(C) No.5680 of 2012 and do the needful in accordance with the procedure contemplated. **MANJULA CHELLUR, Acting Chief Justice.** **V.CHITAMBARESH, Judge.** nj. **MANJULA CHELLUR, Ag.C.J. & V.CHITAMBARESH, J.** -------------------------------------- W.P.(C) No. 5680 of 2012 ## **JUDGMENT** Dated:- 14[th] March, 2012 --------------------------------------