IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 WP(C).No. 22156 of 2008(K) -------------------------- PETITIONER(S): --------------- P.K. ALEX, S/O. LATE KOSHY, ADAYARA PUTHENVEEDU, CHANNANPPETTA.P.O, KOLLAM. BY ADV. SMT.MINI.S.DAS RESPONDENT(S): --------------- 1. THE DISTRICT SUPERINTENDENT OF POLICE, KOLLAM. 2. THE CIRCLE INSPECTOR OF POLICE, ANCHAL, KOLLAM. 3. THE SUB INSPECTOR OF POLICE, YEROOR, KOLLAM. 4. K. JACOB, S/O.LATE KOSHY, ADAYARA PUTHENVEEDU, ANAKULAM.P.O, CHANNANPPETTA, KOLLAM. BY SR.GOVT.PLEADER SHRI BENJAMIN PAUL FOR R1 TO R3 ADV. SRI.S.B.PREMACHANDRA PRABHU FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.22156/08 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, CHANNAPPETTA. EXT.P2: TRUE COPY OF THE FIR AND FIS IN CRIME NO.165/08 OF YEROOR POLICE STATION. EXT.P3: TRUE COPY OF THE FIR AND FIS IN CRIME NO.270/08 OF YEROOR POLICE STATION. EXT.P4: TRUE COPY OF THE REQUEST MADE BY THE PETITIONER TO THE 2ND RESPONDENT DATED 17.4.08. EXT.P5: TRUE COPY OF THE REQUEST MADE BY THE PETITIONER TO THE 3RD RESPONDENT DATED 12.4.08. RESPONDENTS' EXTS: EXT.R4(A): TRUE COPY OF PLAINT IN OA 399/03 OF MUNSIFF'S COURT, PUNALUR. EXT.R4(B): TRUE COPY OF THE ORDER ON I.A.No.1974/03 IN O.S.No. 399/03 OF MUNSIFF'S COURT, PUNALUR. EXT.R4(C): TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM IN O.S.No. 399/03 OF MUNSIFF'S COURT, PUNALUR. EXT.R4(D): TRUE COPY OF THE COMMISSION REPORT AND MAHAZAR DATED 12.11.2003 IN O.S.No. 399/03. EXT.R4(E): TRUE COPY OF THE COMPLAINT DATED 18.12.06 FILED BY THE 4TH RESPONDENT BEFORE THE SUB INSPECTOR OF POLICE, EROOR. EXT.R4(F): TRUE COPY OF I.A.No.623/08 IN O.S.No. 399/03 OF MUNSIFF'S COURT, PUNALUR. EXT.R4(G): TRUE COPY OF THE COMMISSION REPORT AND MAHAZAR DATED 29.5.08. EXT.R4(H): TRUE COPY OF THE COMPLAINT FILED BY THE 4TH RESPONDENT'S WIFE DATED 19.3.08 BEFORE THE C.I.OF POLICE, ANCHAL. EXT.R4(I): TRUE COPY OF THE COMPLAINT FILED BY THE 4TH RESPONDENT'S WIFE DATED 30.5.08 BEFORE THE C.I. OF POLICE, ANCHAL. EXT.R4(J): TRUE COPY OF THE COMPLAINT DATED 24.6.08 FILED BY SHRI ANIRUDHAN PILLAI BEFORE A.S.P., PUNALUR. TRUE COPY K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------------------- W.P.(C)No.22156 OF 2008 K ----------------------------------------------------- DATED THIS THE 13th DAY OF NOVEMBER, 2008 J U D G M E N T Balakrishnan Nair, J. The petitioner claims ownership and possession over 5.98 acres of land in Channappetta Village, Pathanapuram Taluk. The 4th respondent is his brother. He claims possession and right over a portion of that property. He, along with his wife, has filed O.S.No.399/03 before the Munsiff's Court, Punalur seeking an injunction against the petitioner. The Munsiff's Court granted an order of status quo. The petitioner submits, a portion of the petitioner's property is also shown as part of the plaint schedule items. When the order of status quo was in force, the 4th respondent trespassed into his property, abused him and committed mischief on 10.4.2008. Based on the information lodged by the petitioner, Yeroor Police has registered Crime No.165/08 for the offences under Section 448, 294(b) and 427 of the Indian Penal Code. Exhibit P2 is the FIR in that case. Again the 4th respondent trespassed into the property on 11.6.2008 and W.P.(C)No.22156/08 -2- caused extensive damages to the wire fencing and the rubber trees and based on the complaint filed by the petitioner, the police registered Exhibit P3 crime against the 4th respondent for the offences under sections 447 and 427 of Indian Penal Code. The petitioner apprehends danger to his life from the 4th respondent. So, he has preferred Exhibit P4 representation dated 12.4.2008 before the Circle Inspector of Police and Exhibit P5 representation dated 17.4.2008 before the Sub Inspector of Police. Alleging that the police did not take any action to protect his life, this Writ Petition is filed. 2. The learned Government Pleader upon instructions submitted that both sides have flooded the Police Station with complaints and apart from the two crimes registered against the 4th respondent, a crime has been registered against the petitioner also. The same involves offences under sections 324 and 326 also. The victim of the petitioner's attack was the rubber tapper employed by the 4th respondent. 3. The 4th respondent has filed a counter affidavit denying all the allegations of the petitioner. In fact in violation of the W.P.(C)No.22156/08 -3- status quo order, the petitioner has modified the boundary of his property making encroachment into the said respondent's property. In the suit, the 4th respondent has filed an application to prosecute the petitioner for violation of the interim injunction order. The Commissioner appointed by the Civil Court has found that pending suit, after the passing of the injunction order, the petitioner has modified the boundary. To wriggle out of the consequences of the violation of the injunction order, this Writ Petition is filed, seeking police protection, it is submitted. 4. The dispute between the brothers is a dispute regarding immovable properties. The same has to be resolved by the civil court. If the 4th respondent has trespassed into the petitioner's property, his remedy lies before the civil court. The police cannot go into the alleged violation of the injunction order and take remedial action. The police are not under any duty of the petitioner in this regard. In the absence of any breach of duty, this Court cannot invoke its jurisdiction under Article 226 of the Constitution of India, to issue a writ of mandamus to the police. In view of the above position, no relief could be granted W.P.(C)No.22156/08 -4- to the petitioner and the Writ Petition is accordingly dismissed. It is made clear that we have not expressed any opinion regarding the disputed facts raised by both sides before us. The civil court concerned will be free to take appropriate decision in the matter pending before it, uninfluenced by this judgment. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. dsn