Writ Appeals Nos. 1026 & 1028 of 2021 (Shihabudeen v. State of Kerala & Others)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 27[TH] DAY OF OCTOBER 2021 / 5TH KARTHIKA,** **1943** **WA NO. 1026 OF 2021** **AGAINST THE ORDER/JUDGMENT IN WP(C) 827/2021 OF HIGH** **COURT OF KERALA, ERNAKULAM** ## **APPELLANT/PETITIONER:** **SHIHABUDHEEN, AGED 56 YEARS S/O.NUJUMUDHEEN THANGAL, MULLASERIL VADAKKETHIL, SHEFINA MANSIL (NASIRA MANSIL), PATHIYOOR VILLAGE, ERUVA MURI, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN - 690 572.** **BY ADVS. V.N.SANKARJEE VINCENT JOSEPH** ## **RESPONDENTS/RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT PIN 695001.** - **2 THE DIRECTOR GENERAL OF POLICE, STATE POLICE HEARDQUARTERS, VELLAYAMBALAM CITY, THIRUVANANTHAPURAM DISTRICT PIN 695010.** - **3 THE DISTRICT POLICE OF CHIEF, DISTRICT POLICE OFFICE, ALAPPUZHA, ALAPPUZHA DISTRICT PIN 688012** - **4 THE INSPECTOR OF POLICE (CIRCLE INSPECTOR) KAYAMKULAM POLICE STATION, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN - 690 502.** - **5 THE SUB INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION, KAYAMKULAM P.O., ALAPPUZHA DISTRICT - 690 502.** W.A. Nos.1026 & 1028 of 2021 -: 2 :- **6 ABDUL SALAM, AGED 41 YEARS S/O.ABDUL KHADER KUNJ, POKKATTU HOUSE, PATHIYOOR VILLAGE, ERUVA MURI, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN - 690 572.** **BY ADVS. P.A.MOHAMMED SHAH C.R.SYAMKUMAR ASWIN KUMAR M J HELEN P.A.** **BY SR. GOVERNMENT PLEADER SRI.T.K. VIPINDAS** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2021, ALONG WITH WA.1028/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. Nos.1026 & 1028 of 2021 -: 3 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 27[TH] DAY OF OCTOBER 2021 / 5TH KARTHIKA,** **1943** **WA NO. 1028 OF 2021 AGAINST THE ORDER/JUDGMENT IN WP(C) 3282/2021 OF HIGH COURT OF KERALA, ERNAKULAM** ## **APPELLANT/3RD RESPONDENT:** **SHIHABUDHEEN AGED 56 YEARS S/O.NUJUMUDHEEN THANGAL, MULLASERIL VADAKKETHIL, SHEFINA MANSIL (NASIRA MANSIL), PATHIYOOR VILLAGE, ERUVA MURI, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN- 690 572.** **BY ADVS. V.N.SANKARJEE VINCENT JOSEPH** **RESPONDENTS/PETITIONERS 1 TO 3 AND RESPONDENTS 1,2 & 4:** - **1 ABDUL SALAM, AGED 42 YEARS S/O.ABDUL KHADER KUNJ, POKKATTU HOUSE, PATHIYOOR VILLAGE, ERUVA MURI, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN - 690 572.** **2 MUHAMMED SALAHUDEEN S/O.MUHAMMED KUTTY, 'SHIRAZ, KAYAMKULAM P.O., ALAPPUZHA DISTRICT, PIN - 688 502.** W.A. Nos.1026 & 1028 of 2021 -: 4 :- **3 SAIDUKUTTY ALIAS MANI S/O.IBRAHIMKUTTY, SUHAIDA MANZIL, ERUVA P.O., ALAPPUZHA DISTRICT, PIN - 690 502.** - **4 THE DEPUTY SUPERINTENDENT OF POLICE KAYAMKULAM CIRCLE, KAYAMKULAM P.O., ALAPPUZHA DISTRICT, PIN - 690 502.** - **5 INSPECTOR OF POLICE AND STATION HOUSE OFFICER KAYAMKULAM POLICE STATION, KAYAMKULAM PO., ALAPPUZHA DISTRICT - 690 502.** - **6 SAINULABDEEN** **(FATHER'S NAME AND AGE NOT KNOWN TO THE APPELLANT), VAZHAPALLY HOUSE,C-DIT COMPLEX, IKEA JUNCTION, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN - 690 502.** **BY ADVS. HELEN P.A. P.A.MOHAMMED SHAH C.R.SYAMKUMAR ASWIN KUMAR M J** ## **BY SR. GOVERNMENT PLEADER SRI.T.K. VIPINDAS** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2021, ALONG WITH WA.1026/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. Nos.1026 & 1028 of 2021 -: 5 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ. ----------------------------------------------Writ Appeal Nos.1026 & 1028 of 2021** ## **----------------------------------------------Dated this the 27[th] day of October, 2021** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** The common judgment dated 9.4.2021 in W.P.(C) Nos.827 and 3282 of 2021 is under challenge in these appeals. The appellant is the petitioner in W.P.(C) No.827 of 2021 and the third respondent in W.P.(C) No.3282 of 2021. As the parties and Exhibits have been referred to in the impugned judgment as they appear in W.P.(C) No.3282 of 2021, they are referred to in the same manner in this judgment as well. 2. The brief facts are as follows : The premises bearing K.M.C. No.XIV/466 of Kayamkulam Municipality belongs to a Trust. The third respondent was running an agency business in the said premises. According to the petitioners, after having transferred the ownership of the agency business as also the possession of the premises to them in terms of an agreement, the third respondent instituted O.S.No.309 of 2020 before the Munsiff Court, Kayamkulam seeking a decree of permanent prohibitory injunction restraining the petitioners from interfering with his possession and enjoyment ## W.A. Nos.1026 & 1028 of 2021 -: 6 :- of the premises. The petitioners, thereupon, instituted O.S.No.353 of 2020 before the very same court against the third respondent seeking a decree of permanent prohibitory injunction restraining the third respondent from trespassing into the premises. The interlocutory applications preferred by the parties in the suits for temporary injunction against each other have been considered by the court, and in terms of Ext.P11 order, the application for temporary injunction preferred by the petitioners in their suit restraining the third respondent from trespassing into the premises pending disposal of the suit has been allowed by the court. The writ petition was filed by the petitioners thereafter alleging that despite Ext.P11 order, the third respondent has attempted to attack the petitioners and their employees. The prayer in the writ petition was, therefore, for police aid to the life of the petitioners and to their employees to do business peacefully in the premises. Earlier, the third respondent had filed W.P.(C) No.827 of 2021, alleging that he is in possession of the premises and that the concerned Circle Inspector of Police is harassing him in order to vacate the premises, the possession of which is in dispute in the suit filed by him. 3. The learned Single Judge, after hearing the counsel for the parties, took the view that insofar as it is found by the civil court in Ext.P11 order that the petitioners are in possession of the premises, that too, after hearing the parties and perusing the ## W.A. Nos.1026 & 1028 of 2021 -: 7 :- records including the report of the Advocate Commissioner who conducted a local inspection, as long as Ext.P11 order is not vacated or modified, the parties are bound by the same, and disposed of the writ petitions directing that if the third respondent takes law into his own hands and commits acts which may result in breach of peace, the police is bound to interfere. It was also directed that the third respondent will have to obey the directions in Ext.P11 order and under no circumstances he shall make any threat or commit any act which may lead to breach of peace. It was also directed that if threats are made or if any attempt is made to cause physical harm or criminal trespass, the petitioners shall approach the police and lodge a complaint and in that event, the second respondent shall enquire into the allegation and if the allegation is found genuine, he shall initiate appropriate action. The third respondent is aggrieved by the directions issued by the learned Single Judge and hence, these appeals. 4. Heard the learned counsel for the parties on either side. 5. The learned counsel for the appellant argued vehemently that insofar as the dispute between the parties as to the possession of the premises is seized of by a competent civil court, this Court ought not have issued any directions to the police. The learned counsel has relied on the decisions of this Court in **Ajith** W.A. Nos.1026 & 1028 of 2021 -: 8 :- **Associates (Pvt.) Ltd. v. Commissioner of Police, Ernakulam and Others** , 2016 (3) KHC 280, **Fr. Thomas Paul Rambachan v. State Police Chief and Others** 2018 (4) KHC 712 and **John V.O., v. Circle Inspector of Police, Kalloorkadu Police Station, Ernakulam and Others,** 2018 KHC 3260, in support of the said proposition. 6. We have considered the submissions made by the learned counsel for the appellant. 7. The fact that the third respondent has been interdicted from interfering with the possession of the petitioners in respect of the premises by a competent civil court in terms of Ext.P11 order, that too, after hearing him, is not disputed by the third respondent. According to the third respondent, he has challenged Ext.P11 order in appeal and the appeal is pending consideration. On a query from the Court as to whether the third respondent has secured any interim order in the pending appeal, the learned counsel for the appellant conceded that the third respondent could not secure any interim order in the appeal. In the light of the said facts, we do not find any infirmity in the directions issued by the learned Single Judge in terms of the impugned judgment. 8. True, in **Ajith Associates (Pvt.) Ltd.** , this Court has held that questions relating to possession of immovable properties are matters falling within the exclusive jurisdiction of the ## W.A. Nos.1026 & 1028 of 2021 -: 9 :- civil courts and the police cannot decide such questions. It is also held by this Court in the said case that a writ petition under Article 226 of the Constitution cannot be instituted to enforce rights under orders of the civil courts. Similarly, in **Fr. Thomas Paul Rambachan** , this Court held that when a civil suit is pending on an issue, this Court would not be justified in entertaining a writ petition concerning the said issue. Again, in **John V.O.** , this Court held that proceedings under Article 226 of the Constitution cannot be instituted for the purpose of constructing compound walls on disputed boundaries. The aforesaid judgments, according to us, have absolutely no application to the facts of the present case. As noted, this court has only said that so long as Ext.P11 order stands, the third respondent has to obey the same and shall not create any law and order situation. The writ appeals, in the circumstances, are without merits and are accordingly, dismissed. **Sd/P.B.SURESH KUMAR, JUDGE.** **Sd/C.S.SUDHA, JUDGE.** ds 29.10.2021