IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 13331 of 2008(K) ------------------------------------- PETITIONER(S): --------------------- BINDU GOPAKUMAR, W/O.A.R.GOPAKUMAR, 'SOPANAM'HOUSE, AMAYANNOOR P.O., AYARKUNNAM VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.PHILIP T.VARGHESE SMT.A.SREEKALA RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDENT OF POLICE, KOTTAYAM. 3. THE CIRCLE INSPECTOR OF POLICE, PONKUNNAM. 4. THE SUB INSPECTOR OF POLICE, PALLIKAHODE POLICE STATION. 5. THE TAHDILDAR, TALUK OFFICE, CHANGANACHERRY. 6. KRISHNAN NAIR, BINDU MANDIRATHIL, T.P.PURAM BHAGAM, VAZHOOR KARA, VAZHOOR VILLAGE, KOTTAYAM. ADV. SRI.SAIGI JACOB PALATTY FOR R6 SR. GOVT. PLEADER SRI. BENJAMIN PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 13331/2008 K APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE SALE DEED NO. 889/2007 DT. 21/06/2007 OF VAZHOOR SRO. EXT.P2. TAX RECEIPT DT. 30/07/07. EXT.P3. COPY OF THE PETITION FILED BY THE PETITIONER DT. 27/11/2007. EXT.P4. COPY OF THE NOTICE NO. B51402/2008 BY THE R5 TO THE PETITIONER. EXT.P5. COPY OF THE PETITION DT. 27/02/2008 FILED BY THE R5 TO THE R3. EXT.P6. COPY OF THE NOTICE DT. 17/3/2008 TO THE PETITIONER BY R5. EXT.P7. COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE R4 DT. 16/4/2008. RESPONDENTS' EXHIBITS : EXT.R6A. COPY OF THE DEMAND NOTICE ISSUED BY THE KOTTAYAM CO-OP AGRL. AND RURAL DEVELOPMENT BANK LTD. EXT.R6B. COPY OF THE NOTICE FROM THE DEPUTY COLLECTOR VIGILANCE SOUTHERN REGION. / TRUE COPY / tga K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 13331 OF 2008 ============================ DATED THIS THE 21ST DAY OF OCTOBER 2008 JUDGMENT Balakrishnan Nair,J. The petitioner purchased a property ad-measuring 42 cents as per Ext.P1 sale deed. The 6th respondent is the predecessor-in-interest of the vendor of the petitioner. The said respondent is the owner of the neighbouring property also. There is no boundary demarcating the property of the petitioner and the 6th respondent. Therefore, the petitioner moved for surveying the property. When the 6th respondent objected, she moved this Court seeking police protection for measuring the property . That writ petition, W.P.(C)No.2325/2008, filed by the petitioner for the same purpose was dismissed by judgment dated 18-1-2008. The said judgment reads as follows: “ There are civil disputes between the petitioner and fourth respondent. The remedy available for the WPC.13331/2008 -2- petitioner is to approach the civil court and get appropriate relief from there. A writ petition under Article 226 of the Constitution of India will not lie. The writ petition is dismissed.” 2. But instead of approaching the civil court, the petitioner decided to seek administrative remedy available to her under the Surveys and Boundaries Act. When the Taluk Surveyor and the petitioner reached the property for measuring the same, they were prevented forcefully by the 6th respondent. The Tahsildar sought police protection. But the police did not take any effective steps. The petitioner submits, she has preferred Ext.P7 representation before the Sub Inspector of Police seeking protection to her life as also protection for measuring the property. Since the police failed to render protection, this writ petition is filed seeking the above relief. 3. The 6th respondent has filed a counter affidavit stating that Ext.P1 sale deed was executed by one Mr.Suresh Babu, who has no right over the scheduled property. The 6th respondent is in absolute possession and enjoyment of 59 cents WPC.13331/2008 -3- of property in Re-survey 26/20/1 in Vazhoor village. The petitioner is claiming a portion of the property on the basis of the alleged sale deed executed by one Mr.Suesh Babu in favour of the petitioner. The 6th respondent has mortgaged the property with the Kottayam Co-Operative Agricultural and Rural Development Bank Ltd.in the year 1998 and obtained an agricultural loan and as a security for the loan, the sale deed was executed. Since the 6th respondent defaulted to pay the amount due to the Bank, the property was sold in public auction. The Bank itself purchased the property. Thereafter, the 6th respondent moved this Court and confirmation of the sale was stayed by this Court, it is submitted. The 6th respondent further submitted that he assigned a portion of that property to Mr.Suresh Babu as a security for a loan he availed from the said person. There was an agreement to reconvey the property on clearing the loan. Though, he paid the entire amount to Suresh Babu, after receiving the amount, he fraudulently transferred the property to the petitioner. The property was never demarcated WPC.13331/2008 -4- as it was not a regular sale but only a transfer for security towards the loan, it is submitted. 4. Even if the Surveyor measures the property, he cannot fix the boundary in the field unless agreed to by the 6th respondent. If there is any dispute to the boundary for the adjacent property owner, the boundary can be fixed only in paper by the Surveyor. For fixation of the boundary of the property, the remedy of the petitioner is to move the civil court. This Court has already turned away the petitioner to invoke that remedy. Therefore, the present writ petition is an abuse of the process of the court. Accordingly, it is dismissed without prejudice to the contentions of both sides and the right of the petitioner to move the civil court for fixation of the boundary. K. BALAKRISHNAN NAIR, JUDGE ks. M.C. HARI RANI JUDGE WPC.13331/2008 -5- ks.