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 31ST JULY 2008 / 9TH SRAVANA 1930 WP(C).No. 19230 of 2008(L) ---------------------------------------- PETITIONERS: ----------------------- 1. SHYLA, 'GREESHMAM' FROM THURUTHIVILA KIZHAKATHIL, PALLICKAL P.O., KATTACHIRA, BHARANIKKAVU, ALAPPUZHA DISTRICT. 2. LEKHA.S., 'SREEJA SADANAM', PALLICKAL P.O., KATTACHIRA, BHARANIKKAVU, ALAPPUZHA DISTRICT. 3. SHEEJA, 'SREEJA SADANAM', PALLICKAL P.O., KATTACHIRA, BHARANIKKAVU, ALAPPUZHA DISTRICT. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN SMT. SURYA SASI RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT IN THE DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT SUPERINTENDENT OF POLICE, ALAPPUZHA. 3. CIRCLE INSPECTOR OF POLICE, MAVELIKKARA. 4. SUB INSPECTOR OF POLICE, VALLIKUNNAM POLICE STATION. 5. VIJAYA RAGHAVAN, THURUTHIVILA KIZHAKETHIL, PALLICKAL P.O. KATTACHIRA, BHARANIKKAVU, ALAPPUZHA DISTRICT. 6. CHANDRA BABU, THURUTHIVILA KIZHAKETHIL, PALLICKAL P.O., KATTACHIRA, BHARANIKKAVU, ALAPPUZHA DISTRICT. BY SR. GOVERNMENT PLEADER SRI. BENJAMIN PAUL BY ADV. SRI.C.RAJENDRAN FOR R5 & 6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.19230/2008 L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF SETTLEMENT DEED NO.1743/06 DTD. 02/09/2006 OF BHARANIKKAVU SUB REGISTRY. EXT.P2: COPY OF FIR NO.145/07 OF VALLIKUNNAM POLICE STATION. EXT.P3: COPY OF COMPLAINT TO THE CIRCLE INSPECTOR OF POLICE, WOMEN CELL, ALLEPPEY DISTRICT. EXT.P4: COPY OF PETITION DTD. 18/05/2008 SUBMITTED BEFORE THE 4TH RESPONDENT. EXT.P5: COPY OF PETITION DTD. 29/05/2008 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 4TH RESPONDENT. EXT.P6: COPY OF RECEIPT EVIDENCING THE RECEIPT OF EXHIBIT P5 BY THE 4TH RESPONDENT. EXT.P7: COPY OF ORDER DTD. 10/04/2008 IN I.A.NO.717/08 IN O.S.NO.33/07 OF THE MUNSIFF COURT, KAYAMKULAM. EXT.P8: COPY OF PETITION DTD. 07/06/2008 SUBMITTED BEFORE THE DISTRICT COLLECTOR, ALAPPUZHA. EXT.P9: COPY OF RECEIPT EVIDENCING SERVICE OF EXHIBIT P8 ON THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R5(A): COPY OF THE FIR. EXT.R5(B): COPY OF THE MAHAZAR REPORT AND ROUGH SKETCH. EXT.R5(C): COPY OF THE WOUND CERTIFICATE OF 5TH RESPONDENT. EXT.R5(D): COPY OF THE WOUND CERTIFICATE OF SNEHALATHA. EXT.R5(E): COY OF THE WOUND CERTIFICATE OF PUSHAPAGATHAN. EXT.R5(F): COYP OF THE SAID AFFIDAVIT AND PETITION OF MUNSIFF COURT, KAYAMKULAM. EXT.R5(G): COPY OF THE INTERIM ORDER DTD. 14/11/2007. /TRUE COPY/ P.S.TO JUDGE Kss K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 19230 OF 2008 ============================ Dated this the 31st day of July 2008 JUDGMENT Balakrishnan Nair,J. The petitioners are sisters. Their father’s sister Thankamma Channathi assigned certain properties in their favour by Ext.P1 settlement deed. Respondents 5 and 6 are the children of Kunjamma Channathi, the sister of Thankamma Channathi. There is a pathway through the property, assigned in favour of the petitioners by Ext.P1, leading to the property of the respondents 5 and 6. The said respondents raised some dispute regarding the width of the pathway. They tried to widen it and fix boundary stones accordingly. When the petitioners objected, they physically threatened the petitioners and assaulted them. Though they moved the police and lodged an information, no crime was registered. Later, respondents 5 and 6, who are politically influential, lodged an information against the W.P.(C)NO.19230/2008 -2- petitioners and a crime was registered. Simultaneously by postponing the date and time of the information lodged by the petitioners, another crime was registered against respondents 5 and 6, as if, it is a counter blast to the crime registered against the petitioners. The petitioners submit that respondents 5 and 6 have driven out them from the building in Ext.P1 pursuant to the death of Thankamma Channathi in May 2007. Thereafter, they have not allowed the petitioners to enter the property or take usufructs. Respondents 5 and 6 filed a suit before the civil court to set aside Ext.P1 and also for partition of that property. In that suit, the petitioners filed an injunction application seeking injunction against them. That I.A. was allowed. In the order allowing the I.A. the civil court has made a prima facie finding that the petitioners are in possession of the property. The present grievance of the petitioners highlighted in this writ petition is that they are not allowed to enter the property. So, they seek necessary protection to do that. 2. The party respondents have filed a counter affidavit denying the allegations of the petitioners and raising counter allegations against them. The petitioners filed a reply affidavit. W.P.(C)NO.19230/2008 -3- 3. According to the learned Government Pleader, the petitioners are in the habit of filing complaints incessantly. Both parties were called by the police and directed to obey the orders of the civil court. 4. If the party respondents are trespassing into the property covered by Ext.P1 in violation of the civil court's orders, the remedy of the petitioners lies before that court. But the learned counsel for the petitioners prays that they may be granted protection to their life. The petitioners are residing in a building near to the property. When they reside there or go around attending their normal avocation, there is no threat to their life. The alleged threat emanates only when they enter the disputed property. The police have no power or authority to peruse the papers submitted by the petitioners and decide upon their right to enter the property covered by Ext.P1 and if they are found to have that right, to grant protection to them. This court cannot adjudicate the right of the petitioners to enter the disputed property and direct the police to grant protection based on that finding. In this jurisdiction, the powers of this Court are co-terminus with the failure of the police to perform W.P.(C)NO.19230/2008 -4- their statutory duty. In the absence of any statutory duty in the police to peruse the claim of the petitioners regarding their right over the property and enforce their finding by standing guard to them for enjoyment of the property, we are not justified in directing the police as claimed by the petitioners. Without prejudice to the contentions of the petitioners and their right to move the civil or criminal courts for appropriate reliefs, this writ petition is dismissed. Sd/- K. BALAKRISHNAN NAIR, JUDGE Sd/- M.C. HARI RANI JUDGE ks. TRUE COPY