Vinayak Mohandas v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943** ## **WP(C) NO. 26656 OF 2019** ## **PETITIONER:** **VINAYAK MOHANDAS, AGED 24 YEARS S/O.LATE R.MOHANDAS, 1 C, DAFFODILS, SKYLINE RIVERDALE, PETTAH ERNAKULAM, PIN-682301.** **BY ADVS. K.V.BHADRA KUMARI SRI.SHINU J.PILLAI SMT.P.V.RADHAMANI** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN695001.** - **2 DEPUTY SUPERINTENDENT OF POLICE, VAIKOM, KOTTAYAM DISTRICT, PIN-686141.** - **3 STATION HOUSE OFFICER, OFFICE OF THE CIRCLE INSPECTOR OF POLICE, VAIKOM, KOTTAYAM, PIN-686141.** - **4 SHEEBA, AGED 52 YEARS** - **W/O.BIJU, VADAKKEKOTTARAM, VAIKOM, PIN-686141.** - **R4 BY ADV SMT.MINI.V.A., LEGAL AID COUNSEL** - **R1 TO R3 BY SRI.N.B.SUNIL NATH, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.26656/2019** **2** **P.V.KUNHIKRISHNAN, J. ------------------------------W.P.(C).No.26656 of 2019 ---------------------------------------------Dated this the 02[nd] day of July, 2021** ## **JUDGMENT** The case of the petitioner is that, he and his elder brother and mother are in joint ownership of 7.69 Ares of land in Survey Nos.70/15 and 74/3 of Naduvile Village. A building is also there with Municipal Door No.5/126. 2. According to the petitioner, the property vested upon them by petitioner’s father during his life time. The father died on 10.06.2019. The petitioner is a lawyer practicing at Ernakulam, her mother is also a lawyer practicing at Delhi and his elder brother is a Captain in Indian Army. After the completion of customary rituals in connection with the death of the petitioner’s father, when the petitioner, his mother, brother and relatives left the house, it is alleged that the 4[th] respondent trespassed into the above property and started to reside in the house. According to the petitioner, the 4[th] respondent is a stranger to the family. The petitioner submitted that the 4[th] respondent filed Ext.P1 petition before the Judicial First Class **W.P.(C).No.26656/2019** **3** Magistrate Court – I, Vaikom under the PWDV Act. The learned Magistrate passed an interim order as evident by Ext.P2. Subsequently the learned Magistrate considered the case in detail and dismissed the petition filed by the 4[th] respondent as evident by Ext.P5 order. The counsel for the petitioner submitted that the 4[th] respondent has no right to reside in the house of the petitioner and his family members. They are the absolute owners of the property. The counsel submitted that there is a registered Will executed by the deceased father in favour of the petitioner and others. Ext.P8 is the alleged Will. According to the counsel it is a registered Will. Therefore the 4[th] respondent has no right to reside in the house. The counsel submitted that the petitioner may not be dragged to the civil court for getting this relief. According to the counsel, it is a clear case in which a stranger is residing in the house of the petitioner and therefore, this Court is justified in passing police protection to evict the 4[th] respondent from the house. The counsel relied upon the judgment of this Court in **Jithesh v. State of Kerala [2013 (4) KLT 565], Harrisons Malayalam Ltd (M/s.) and Others v. State of Kerala and Others [2010 (2) KHC 813], M/s. Harrisons Malayalam Ltd v. State of Kerala [2007 (4) KLT 540]** and **W.P.(C).No.26656/2019** **4** ## **Reghunathan v. Deputy Superintendent of Police [1986 KLT 1263]** . 3. When notice was issued to the 4[th] respondent, there was no appearance. Therefore this Court passed an order on 26.06.2020 which is extracted hereunder: _“This writ petition is filed for police protection. Though notice was served on the fourth respondent by special messenger, she has not chosen to appear. She is 50 years old. According to police, she is in occupation of the building. It is necessary to ascertain why the fourth respondent could not appear before this Court. If she is not able to afford a lawyer, necessarily, legal aid should_ _be provided to her. The Taluk Legal Services Committee, Vaikom shall visit her and ascertain whether she is willing to be represented through a lawyer or not. The Kerala State Legal Services Authority shall obtain such report immediately._ _Post on 30.06.2020.”_ Thereafter, based on the report from the KELSA, a counsel was appointed for the 4[th] respondent. 4. I heard Adv.Mini V.A., who appeared for the 4[th] respondent. 5. The counsel for the 4[th] respondent submitted that the averments in the writ petition are absolutely incorrect. The **W.P.(C).No.26656/2019** **5** petitioner suppressed several facts from this Court. According to the counsel, the 4[th] respondent is residing in the house from 2000 onwards. The counsel submitted that the 4[th] respondent was living together with the deceased father of the petitioner. There was a child in the relationship. The child is no more. Ext.R4(a) is the death certificate. The counsel takes me through Ext.R4(a) in which the father’s name is mentioned as Mohandas, who is the father of the petitioner. The counsel also takes me through Ext.R4(c), the petition filed by the mother of the petitioner for divorce from her husband under Section 13 of the Hindu Marriage Act. The counsel specifically takes me through paragraph 4 of Ext.R4(c) in which the mother of the petitioner contended that the 4[th] respondent is residing with her husband in the house from 2000 onwards. The counsel submitted that based on Ext.R4(c) divorce petition, the Family Court passed a decree as evident by Ext.R4(d) in which the marriage between the father of the petitioner and the mother of the petitioner was dissolved under Section 13 of the Hindu Marriage Act. The counsel also submitted that the 4[th] respondent filed O.S.No.51 of 2020 before the Munsiff’s Court for a permanent injunction restraining the petitioner and others from entering into the house in which she **W.P.(C).No.26656/2019** **6** is now residing. The counsel also submitted that Ext.P5 order passed by the learned Magistrate is challenged before the Sessions Court, Kottayam by filing Criminal Appeal No.29 of 2019 and the same is also pending. The counsel submitted that it is a case in which there is civil dispute pending between the 4[th] respondent and the petitioner. This Court may not interfere with the dispute. The counsel submitted that the suit is pending before the civil court. Any order passed by this Court in this writ petition will affect her contentions before the civil court. 6. The Government Pleader submitted that there is no law and order issue at present. The Government Pleader also submitted that it is a clear case of civil dispute between the petitioner and his family members on one side and the 4[th] respondent on the other side. The matter is to be decided by the civil court and this Court may not pass any orders in this writ petition. 7. After hearing both sides, I think there is some force in the argument of the Government Pleader. This is a clear case in which there is property dispute between the petitioner’s family and the 4[th] respondent. Admittedly the 4[th] respondent is residing in the house in dispute. The petitioner says that the 4[th] **W.P.(C).No.26656/2019** **7** respondent is an encroacher. The 4[th] respondent says that she is residing there from 2000 onwards and she has got certain rights. This Court while entertaining a writ petition under Article 226 of the Constitution of India cannot decide all these disputed facts. The counsel relied on the judgment of this Court in **Jithesh’s case** and **Harrisons Malayalam’s case** (supra). Those decisions were rendered by this Court on entirely different factual situation. In the present case, it is a clear case of civil dispute about a property in which this Court cannot interfere invoking the powers under Article 226 of the Constitution. I do not want to make any further opinion about the contentions of the petitioner or the 4[th] respondent because it will affect their right before the civil court. All contentions of the petitioner’s family and the contentions of the 4[th] respondent are left open. But I make it clear that if there is any threat to the life of the petitioner, the Police will do the needful. The counsel for the petitioner also contended that after the divorce order from the Family Court, the mother of the petitioner reunited with his father and they were living together. Thereafter the Will is executed by the father. I cannot decide these factual contentions in a writ petition under Article 226 of the Constitution of India. **W.P.(C).No.26656/2019** **8** Therefore, this writ petition is disposed in the following manner: 1. All contentions of the petitioner and the 4[th] respondent about their right in the property in dispute are left open. 2. If there is any threat to the life of the petitioner, the petitioner is free to approach the Station House Officer concerned with a complaint. 3. If such a complaint is received, the Station House Officer will do the needful in accordance to law. 4. But I make it clear that, under the guise of the above order, the petitioner can't evict the 4[th] respondent from the disputed property. The petitioner can take appropriate civil remedy against the 4[th] respondent in accordance to law. - With the above observations, this writ petition is disposed of. Sd/- JV **P.V.KUNHIKRISHNAN JUDGE** **W.P.(C).No.26656/2019** **9** ## **APPENDIX OF WP(C) 26656/2019** ## **PETITIONER ANNEXURE** - **EXHIBIT P1 TRUE COPY OF THE PETITION DATED 28.6.2019 IN M.C.NO.29 OF 2019 FILED BY THE 4TH RESPONDENT BEFORE THE HON'BLE J.F.C.M. COURT, VAKOM.** - **EXHIBIT P2 TRUE COPY OF THE AD-INTERIM ORDER IN M.C.NO.29 OF 2019 DATED 28.06.2019 OF THE HON'BLE J.F.C.M.COURT, VAKOM.** - **EXHIBIT P3 TRUE COPY OF THE APPLICATION FILED BY THIS PETITIONER IN M.C.NO.29 OF 2019.** - **EXHIBIT P4 TRUE COPY OF THE COUNTER DATED 16.09.2019 FILED BY THE 4TH RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 23.09.2019 IN M.C.NO.29 OF 2019.** - **EXHIBIT P6 TRUE COPY OF THE COMPLAINT FILED BY PETITIONER'S MOTHER BEFORE THE 3RD RESPONDENT HEREIN.** - **EXHIBIT P7 TRUE COPY OF THE COMPLAINT DATED 01.10.2019 FILED BEFORE THE 2ND RESPONDENT.** **EXHIBIT P8** **TRUE COPY OF THE WILL DEED NO.3/III/2016 DATED 6.1.2016 OF VAIKKOM S.R.O.** **RESPONDENT'S EXHIBITS:** **EXHIBIT R4(a) TRUE COPY OF THE DEATH CERTIFICATE OF 4TH RESPONDENTS SON VISHNU MOHANDAS** **EXHIBIT R4(b) TRUE COPY OF THE NOMINATION SUBMITTED BY THE 4TH RESPONDENTS HUSBAND R.MOHANDAS** **EXHIBIT R4(c) TRUE COPY OF THE OP NO.1306/2006 FILED BEFORE THE FAMILY COURT ERANAKULAM. EXHIBIT R4(d) TRUE COPY OF THE JUDGMENT DATED 28/6/2008 IN OP NO 1306/2006 FILED** **10** ## **W.P.(C).No.26656/2019** **BEFORE THE FAMILY COURT ERNAKULAM EXHIBIT R4(e) TRUE COPY OF THE PLAINT IN OS NO.51/2020 PENDING BEFORE THE MUNSIFFS COURT, VAIKOM EXHIBIT R4(f) TRUE COPY OF THE COMMISSION REPORT FILED IN OS NO.51/2020 DATED 13/8/2020**