Vilasini v. Deputy Superintendent of Police, Neyyattinkara

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 WP(C).No. 1717 of 2010(L) (Under Article 226 of the Constitution of India) ------------------------- PETITIONER: - --------------- VILASINI,MAVUNNINAKKULLAKARA VILLA VEEDU,THIRUPURAM.PO,VIA NEYYATTINKARA. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS: --------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE, NEYYATTINKARA. 2. THE CIRCLE INSPECTOR OF POLICE, POOVAR POLICE STATION,POOVAR, NEYYATTINKARA. 3. THE SUB INSPECTOR OF POLICE, POOVAR POLICE STATION,POOVAR,NEYYATTINKARA. 4. SHAJI,MAVUNINNA KULANGARA VEEDU, THIRUPURATHOOR DESOM,THIRUPURAM VILLAGE. 5. SNEHA VASANTHA,MAVUNINNA KULANAGARA VEEDU,THIRUPURATHOOR DESOM,THIRUPURAM VILLAGE. 6. PANKAJI @ PANKAJAKSHI,OF -DO- - -DO- 7. SANTHI,W/O.SHAJI,OF -DO- -DO- ADV. GOVT.PLEADER FOR R1-R3 SRI.S.JAMES VINCENT FOR R4 TO R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SYNOPSIS** ## PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF PLAINT DATED 9.11.2009 IN O.S. NO. 941/2009 BEFORE THE MUNSIFF COURT, NEYYATTINKARA EXT.P2 : TRUE COPY OF THE DELIVERY PROCEEDINGS DT.20.8.09 IN O.S. 3/78 BEFORE THE MUNSIFF COURT, NEYYATTINKARA EXT.P3. : TRUE COPY OF PLAN. EXT.P4 : TRUE COPY OF FINAL DECREE DATED 6.12.2007 IN O.S. NO.3/78 BEFORE THE MUNSIFF COURT, NEYYATTINKARA EXT.P5 : TRUE COPY OF INJUNCTION ORDER IN I.A. NO. 6011/09 IN O.S. NO. 941 OF 2009 BEFORE THE MUNSIFF COURT, NEYYATTINKARA EXT.P6 : TRUE COPY OF REPRESENTATION DATED 17.12.2009 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P7 : TRUE COPY OF THE REPRESENTATION DATED 19/2/2000 FILED BY THE PETITIONER BEFORE THE DEPUTY SUPERINTENDENT OF POLICE, NEYYATTINKARA ## RESPONDENTS' EXHIBITS EXT.R4(a) : TRUE COPY OF SALE DEED NO. 729/2007 DT. 18.8.2007 OF POOVAR SUB REGISTRY EXTR4(b) : TRUE COPY OF SETTLEMENT DEED NO. 366/1994 DATED 21.4.1994 OF POOVAR SUB REGISTRY EXT.R5(c) : TRUE COPY OF LAND REVENUE RECEIPT NO. 0452861 IN BOOK NO. 4529 DT. 15.12.2005 ISSUED BY THE VILLAGE OFFICER, THIRUPURAM EXT.R4(d) : TRUE COPY OF PATTA NO. 157/1990 DATED 21.2.21990 OF THE LAND TRIBUNAL PARASSALA EXTR4(e) : TRUE COPY OF ORDER DT.27.1.1976 IN O.A. NO. 78/1974 OF THE LAND TRIBUNAL, PARASSALA EXT.R4(f) : TRUE COPY OF PARTITION DEED NO. 552/1990 DT.28.7.1990 OF POOVAR SUB REGISTRY. EXT.R4(g): TRUE COPY OF SALE DEED NO 574/1990 DATED 16.8.1990 OF POOVAR SUB REGISTRY, EXT.R4(h) : TRUE COPY OF LAND REVENUE RECEIPT NO. 0718997 IN BOOK NO. 7190 DATED 5.1.2010 ISSUED BY THE VILLAGE OFFICER, THIRUPURAM EXT.R4(i) : TRUE COPY OF PLAINT IN O.S. 675/2009 ON THE FILES OF MUNSIFF'S COURT, NEYYATTINKARA EXT.R4(j): TRUE COPY OF EX PARTE ORDER OF INTERIM INJUNCTION DT.28.8.2009 ON I.A. 4562/2009 -DOEXTR4(k) : TRUE COPY OF I.A. NO. 5734/2009 FILED IN O.S. 675/2009 FOR IMPLEADING THE WRIT PETITITIONER. EXT.R4(l) : TRUE COPY OF WRITTEN STATEMENT DT.9.11.2009 FILED BY THE 1ST DEFENDANT IN O.S. 675/2009. EXT.R4(m): TRUE COPY OF PRELIMINARY JUDGMENT DT. 31.8.1988 IN O.S. NO. 3/1978 OF MUNSIFF'S COURT NEYYATTINKARA EXT.R4(n): TRUE COPY OF E.P. 320/2008 FUILED BY THE WRIT PETITIONER ON 22.10.2008 IN -DOEXT.R4./(o) : TRUE COPY OF CLAIM PETITION DT.1.7.2009 FILED BY THE 4TH RESPONDENT, UNDER ORDER XXI, RULE 58, CPC FOR DECLARATION OF TITLE TO THE DISPUTED 2 ½ CENTS. EXT.R4(p) : TRUE COPY OF OBJECTIONS FILED BY THE 1ST CR. PETITIONER THREIN, ON 13.7.2009. EXT.R4(q) : TRUE COPY OF THE INTERLOCUTORY APPLICATION FOR RE DELIVERY OF 2 ½ CENTS FILED BY THE RESPONDENTS 4 TO 7 IN O.S. NO. 3/1978 ON 7.9.2009. EXT.R4(r) : TRUE COPY OF APPLICATION FILED BY THE 4TH RESPONDENT ON 28.8.2009 TO RESTORE E.A. 485 OF 2009. EXT.R4(s) : TRUE COPY OF LETTER NO. A3-732/08 DATED 31.8.2009 OF POOVAR PANCHAYAT ADDRESSED TO THE SI OF POLICE POOVAR. EXT.R4(t) : TRUE COPY OF FIR NO. 245/2009 DT.28.10.2009 REGISTERED BY THE POOVAR POLICE STATION. EXT.R4(u): TRUE COPY OF POLICE FILED THE FINAL REPORT AND CHARGE SHEET ALSO ON 28.10.2009. EXT.R4(v) : TRUE COPIES OF FIR NO. 290 OF 2009 WITH THE STATEMENT OF A WITNESS DT.23.12.2009 AND SCENE MAHAZAR DT.24.12.2009. EXT.R4(w) : TRUE COPY OF SOME OF THE PHOTOGRAPHS (3 NOS.) SHOWING THE ACTIVITIES CARRIED OUT BY THE WRIT PETITIONER. ## **K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 1717 of 2010 L** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** **Dated this the 4[th] day of March, 2010.** ## **JUDGMENT** ## **Joseph J.,** The petitioner approached this court seeking the following prayers: (i) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents 1 to 3 to grant adequate personal police protection to the petitioner. (ii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents 1 to 3 to grant adequate police protection to preserve and protect 71 ½ cents of property in Re-survey No.435/13 Block No. 20 of Thirupuram Village and also police protection to cultivate and collect 2 ## **W.P. (C) No. 1717 of 2010** usufructs from the same. (iii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 1[st] respondent to dispose Ext.P6. 2. Briefly put the case of the petitioner is as follows: The petitioner has obtained 71 ½ cents of property in Re-survey No. 435 /13 of block No.20 of Thirupuram Village, Neyyattinkara Taluk. The same was obtained through the court pursuant to a decree for partition in O.S. No. 3 of 1978. The petitioner filed O.S. No. 941 of 2009 before the Munsiff's Court, Neyyattinkara against respondents 4 to 6. (Ext.P1). Ext.P2 is the copy of the delivery proceeding in the civil suit dated 20.8.2009. The plan mentioned in Ext.P2 is produced as Ext.P3. Ext.P4 is the final decree in O.S. No. 3 of 1978. The petitioner has filed Ext.P5 Interlocutory application for a temporary injunction and the temporary injunction was granted restraining the defendant from trespassing into the property in question, obstructing its peaceful enjoyment etc. It is the further case of the petitioner that respondents 4 to 7 are creating all sorts of ## **W.P. (C) No. 1717 of 2010** 3 trouble in the peaceful enjoyment of the property in question. The petitioner has filed Ext.P6 complaint before the Deputy Superintendent of Police, Neyyattinkara. The representation has not elicited the requisite response and hence the writ petition. A counter affidavit on behalf of respondents 4 to 7 was filed along with Exts. R4(a) to R4(w). A reply affidavit was filed to the same. 3. We heard learned counsel for the petitioner, Sri. B. Krishna Mani and Sri. S. James Vincent, learned counsel for respondents 4 to 7 and also the learned Government Pleader. 4. The learned counsel for the petitioner would submit that the petitioner has taken the delivery of 71 ½ in survey No. 435/13 in block No. 20 of Thiruvupuram Village. The old survey number is pointed out to be 80/5 of Thirupuram Village. He would point out that the documents produced in support of the claims of respondents 4 to 7 would show that they are having property in survey No. 80/6. He would further point out that an interim injunction was obtained. He would submit that in view of the fact that the petitioner is the owner and in possession of the 71 ½ cents, as per the court delivery 4 ## **W.P. (C) No. 1717 of 2010** proceedings, she is entitled to the relief sought in the writ petition as against the respondents 4 to 7, who have been set up by some other parties in the partition deed. (Learned counsel for the party respondents points out that there is no pleading to the effect that the party respondents are set up.) Learned Government pleader would submit that on the basis of the complaints filed by the petitioner and respondents 4 to 7, four crimes have been registered, out of which two crimes were on the basis of complaints from the petitioner and two on the basis of complaints from respondents 4 to 7. It is pointed out by party respondents that the first complaints were filed by the party respondents. 5. It is true that the petitioner has produced documents to show that the petitioner has obtained delivery of property of 71 ½ cents of property. It is also true that the documents produced would show that the said property is comprised in Survey No. 80/5. It is also true that the documents produced by respondent's side is relatable to survey No. 80/6. But we must not over look the fact that the petitioner has obtained an exparte injunction. That is yet to be 5 ## **W.P. (C) No. 1717 of 2010** finalised. 6. We refer to the decision of the Division Bench of this Court in **Kunjumuhammed v. Baba Haji** (1999(2) KLT 816), which reads as follows: “6. It is thus clear that the injunction order now produced along with the Original petition is an ad-interim order, that the contesting respondents/ appellants herein have filed counter affidavit in that matter and that the trial court has already appointed a Commissioner to identify the properties and to file a plan and report. 7. The basis for seeking police protection from this Court is the exparte ad-interim injunction order passed by the Munsiff. The facts referred to above would disclose that the respondents 1 to 3 have obtained an order on the Original Petition without disclosing the entire facts and circumstances. Learned counsel for the appellants cited two decision of this court reported in **George Mirante v. State of kerala (1990(2) KLT 90) (by Viswanatha Iyer J.,)** and Kochupennu Ambujakshi v. Veluthakunju Vasu Channar (AIR 1993 Ker 62) (by Balanarayana Marar J.,) 6 ## **W.P. (C) No. 1717 of 2010** We have perused the above judgments cited before us. When there is dispute between the parties and when it is only an inerim ex parte order passed by the Munsiff which alone is in force, this Court shall not interfere in the matter invoking its jurisdiction under Art.226 of the Constitution of India with a direction for police aid.” 7. The party respondents have also filed a civil suit and that is also pending consideration. The party respondents have also a case that the delivery obtained by the petitioner is a symbolic delivery without identifying the property. Of course the learned counsel for the petitioner submitted that the property was correctly identified and delivered. In this case, particularly when the matter is pending consideration before the competent civil court, we need not grant relief of police protection sought and the petitioner is relegated to the civil court for resolving the dispute. 8. Further, the learned counsel for respondents 4 to 7 submits that respondents 4 to 7 will not physically harm the petitioner. We record this submission. ## **W.P. (C) No. 1717 of 2010** **==> picture [7 x 10] intentionally omitted <==** 9. In the circumstances of this case, we further direct the Munsiff Court, Neyyattinkara to dispose of I.A. No. 6011 of 2009 in O.S. No. 941 of 2009 within a period of three months from the date of production of a copy of this judgment. Needless to say, the proceedings in respect of any of crimes registered shall be continued in accordance with law. ## **K.M. JOSEPH, JUDGE** **M. L. JOSEPH FRANCIS, JUDGE.** dl/