IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 WP(C).No. 22953 of 2011(T) -------------------------------- PETITIONER(S): ----------------- KALLELI URUMESE FRANCIS,AGED 54 YEARS, KALLELY BHAVAN,NAYARANGADY DESOM,KODASSERY VILLAGE,MUKUNDAPURAM TALUK,THRISSUR DISTRICT. BY ADV. SRI.THOMAS ABRAHAM SMT.MERCIAMMA MATHEW SRI.K.S.HARIDAS RESPONDENT(S): ------------------- 1. DISTRICT SUPERINTENDENT OF POLICE, ERNAKULAM(RURAL),ALUVA,ERNAKULAM.-683101 2. CIRCLE INSPECTOR OF POLICE,KOTHAMANGALAM ERNAKULAM.-686691 3. SUB INSPECTOR OF POLICE,KUTTAMPUZHA POLICE STATION,KOTHAMANGALAM,ERNAKULAM.-686691 4. THOMAS PAUL ALIAS TOMY, S/O.PAILY, RESIDING AT ARAMBANKUDIYIL HOUSE,KEERAMPARA KARA, KEERAMPARA VILLAGE.-686691 5. JOSE PAUL,S/O.PAILY,RESIDING AT ARAMBANKUDIYIL HOUSE,NJAYAPPILY.P.O, KUTTAMPUZHA VILLAGE.-686696 ADV. SRI.PEEYUS A.KOTTAM FOR R4,5 SR. GOVT. PLEADER SRI.M.K.ABOOBACKER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22953 of 2011(T) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE COPY OF THE SALE DEED NO.4702/98 OF KOTHAMANGALAM SUB REGISTRY. EXT.P2:- TRUE COPY OF THE ORDER DT. 16/02/09 IN O.S.573/08 PASSED BY THE MUNSIFF'S COURT, MOOVATTUPUZHA EXT.P3:- TRUE COPY OF THE AGREEMENT DATED 17/08/11 ENTERED INTO BETWEENT HE PETITIONER AND THE SLAUGHTER CONTRACTOR EXT.P4:- TRUE COPY OF THE COMPLAINT DT. 20/08/11 SUBMITTED TO THE POLICE BY THE SLAUGHTER CONTRACTOR. EXT.P4(a):- THE TRUE COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT. EXT.P5:- THE TRUE COPY OF THE PETITION DATED 21/08/11 SUBMITTED BY THE PETITIONER BEFORE RESPONDENTS 1 TO 3. EXT.P6:- TRUE COPY OF THE APPLICATION FOR MUTATION SIGNED BY THE 4TH RESPONDENT. EXT.P7:- TRUE COPY OF the REPORT AND SKETCH FILED BY THE ADVOCATE COMMISSIONER EXT.P8:- A ROUGH SKETCH SHOWING THE DETAILS OF THE LIE OF THE PROPERTY THE PATH WAY THROUGH WHICH TIMBER CAN BE TRANSPORTED ETC. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & K. HARILAL, JJ. ------------------------------------------------ W. P. C. No.22953 of 2011 ------------------------------------------------ Dated this the 2nd day of December, 2011 JUDGMENT Pius C. Kuriakose The petitioner who claims to be the owner of 93.5 cents of land in Kuttampuzha village of Kothamangalam Taluk by virtue of Ext.P1 Sale Deed complains that respondent 4 (who is the executant in Ext.P1) and his brother the 5th respondent are without any justifiable reason obstructing the cutting and removal of the rubber trees standing upon Ext.P1 property. According to the petitioner, such cutting and removal is absolutely necessary for facilitating rubber plantation. He complains that though the police was approached they have not taken any action. 2. Sri.M.K.Aboobacker, the learned senior Government Pleader on the basis of instructions from the 3rd W. P. C. No.22953 of 2011 -2- respondent/Sub Inspector of Police submitted that there seems to be a civil dispute between the petitioner and the party respondents in respect of a property covered by Ext.P1. Though Ext.P1 document has been executed according to the 4th respondent the same was not intended to be a sale deed. It was executed only as a document by way of security. Mutation of names is yet to be effected in the basic registers. The property continues to be under the physical possession of the 4th respondent. This is the situation why the police are unable to intervene in the matter. 3. Sri.Thomas Abraham, the learned counsel for the petitioner would draw our attention to Ext.P2 order of injunction passed by the learned Munsiff in favour of the petitioner against the party respondents in O.S.573/08. Sri.Thomas Abraham submitted that Ext.P2 has attained finality. According to him, it is not open to the party W. P. C. No.22953 of 2011 -3- respondents or to any police officers to submit that the party respondents are in physical possession of the property. The police officers are actually aiding the party respondents in willfully disobeying Ext.P2. 4. On the basis of detailed counter affidavit filed by the respondents 4 and 5 Sri.Peeyus A. Kottam submitted that Ext.P2 is the result of improper conduct of the litigation by the party respondents who did not receive proper legal advice at the right time. Ext.P2 is being challenged. He pointed out that at any rate the suit O.S.573/08 is a suit for fixation of boundary. According to Sri.Peeyus as the petitioner himself filed the suit for fixation of boundary it is clear that there is a valid civil dispute. So long as the boundary dispute is not finally decided by the court passing a decree, this Court will not be justified in granting police protection. The trial is yet to be completed, so submitted the counsel. W. P. C. No.22953 of 2011 -4- 5. We have given our anxious consideration to the rival submissions addressed at the Bar. We have gone through various materials placed on record by either parties. The question which arises for decision by us is whether the police protection direction sought for can be granted by us straight away. We feel that the above question will have to be answered against the petitioners. Ext.P2 is certainly an order of injunction against the party respondents and another person. So long as Ext.P2 is in currency the party respondents are bound to obey the same. The grievance of the petitioner thus is essentially that the party respondents are violating Ext.P2. According to us, the remedy available to the petitioner is to apprise the learned Munsiff of the violation of the injunction order. They can also seek enforcement of Ext.P2 injunction order by filing appropriate applications. It is always open to the learned Munsiff to issue directions to the police to enforce Ext.P2 injunction order. W. P. C. No.22953 of 2011 -5- We reiterate that so long as Ext.P2 is in currency it is the duty of the learned Munsiff to ensure that the same is enforced. We relegate the petitioner to that remedy and dispose of the Writ Petition. We have not stated anything about the merits of the rival contentions raised by the parties in the pending suit. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- K. HARILAL JUDGE kns/- //True Copy// P. A. TO JUDGE