IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 WP(C).No. 33238 of 2010(D) ------------------------------------- PETITIONER(S): --------------------- K.G.SATHYANANDAN, POOVANTHURUTHU VEEDU, KADAKKAVOOR, CHIRAINKEEZHU TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE SMT.D.P.RENU RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT., HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695001. 2. DY.SUPERINTENDENT OF POLICE, ATTINGAL-695 101. 3. S.I. OF POLICE, KADAKAVOOR POLICE STATION, KADAKKAVOOR-695 306. 4. RAJENDRAN, S/O.CHELLAPPAN CHETTIYAR, VILAYIL VEEDU, CHAVADI MUKKU, KADAKKAVOOR-695 306. 5. OMANA, D/O.SUBHADRAMMAL, VILAYIL VEEDU, CHAVADI MUKKU, CHIRAYINKEEZHU TALUK KADAKAVOOR-695 306. R1 TO R3 BY GOVERNMENT PLEADER SRI.T.K.VIPINDAS. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.C.HARI RANI, JJ. ------------------------------------------------------ W.P.(C) No.33238 of 2010-D ---------------------------------------------- Dated, this the 3rd day of November, 2010 J U D G M E N T K.M.Joseph, J. Petitioner has approached this Court seeking the following reliefs: “a) to issue a writ of mandamus or other writ order or direction directing the respondents 2 and 3 to give sufficient police protection to the life and property of the petitioner and his men for their continued peaceful occupation of the shop building and the property therein. b) to declare that the petitioner and his men are entitled to police protection for their life and property and for their peaceful life in the building and the property covered by Ext.P1.” 2. Briefly put, the case of the petitioner is as follows: Petitioner purchased 3 ½ cents of property vide Ext.P1 sale deed dated 27.7.2010 from one Roji Gopal. Since there was threat by respondents 4 and 5, the original owner Roji Gopal filed a suit for injunction as O.S.244/2007 before the Munsiff Court, Varkala. The said suit is decreed. Ext. P2 WPC 33238/2010 -2- is the copy of the decree containing the plan of the property. There is a shop building in the property and eversince Ext.P1 the petitioner is in absolute possession of the property and he is occupying the shop. Respondents 4 and 5 are attempting to disturb petitioner's possession and invariably they used to threaten the life of the petitioner and his men with the local goonda. Petitioner filed detailed petition before the 2nd and 3rd respondents and one of the same is produced as Ext.P3. Respondents 4 and 5 filed A.S.89/2009 before the Sub Court, Attingal. Since the appellate Court did not pass any orders on the application for stay, the appellant moved this Court, and, by Ext.P4 judgment this Court directed the Sub Judge, Attingal to dispose of the stay petition and stayed fixation of boundary in the meantime. There is no dispute about boundary. But, respondents 4 and 5 always used to threaten the petitioner and his men who occupied the building in the property. 3. We heard Sri.N.Dharmadan, learned senior counsel for the petitioner. Petitioner is a transferee from the plaintiff in the suit. No doubt, the suit has been decreed. The WPC 33238/2010 -3- litigation has not attained finality. An appeal is pending. What is more, this Court has, by Ext.P4 judgment ordered stay of decree relating to fixation of boundary. 4. Learned senior counsel for the petitioner would contend that there is no dispute between the petitioner and respondents 4 and 5. Petitioner is the absolute owner in possession of the property transferred to him. He being threatened the police have a duty to act. He would also challenge the correctness of the decision in Suseela v. State of Kerala (2008 (4) KLT 561). He would rely on the decision in Shahul Hameed v. Narayana Pillai (2000 (3) KLT 536). He would also submit that this Court when it passed Ext.P4 judgment did not issue notice to the petitioner and if notice has been issued he would have been in a position to persuade this Court not to pass the order which is passed. 5. The fact of the matter is that the petitioner is a pendente lite alienee from a party to the litigation where the question relating to immovable property is in issue. The judgment of the trial Court is impugned before the first appellate Court and the appeal is still pending. The transfer in WPC 33238/2010 -4- favour of the petitioner is of recent origin. We would think that it may not be an appropriate case for this Court to entertain the writ petition seeking the reliefs as the petitioner does. We would think that petitioner has got alternate remedies including joining in the appeal. In the circumstances, we do not think that we need entertain this writ petition. We decline jurisdiction. We, however, direct that, if the petitioner complains of commission of any cognizable offence by respondents 4 and 5 or by any person at their instance before the 3rd respondent, the 3rd respondent shall take action in accordance with law in the matter. (K.M.JOSEPH) JUDGE. (M.C.HARI RANI) JUDGE. MS