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 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 21039 of 2008(D) -------------------------- PETITIONER: ------------ ELIZABETH, D/O.MARIAM, AGED 62 YEARS, RESIDING IN KAVUMPURATHU PUTHEN VEEDU, T.C.9/166, JAWAHAR NAGAR, SASTHAMANGALAM, THIRUVANANTHAPURAM. BY ADV. SRI.SANTHAN V.NAIR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HOME AFFAIRS, SECRETARIAT, TRIVANDRUM. 2. THE ASSISTANT COMMISSIONER OF POLICE, CANTONMENT, BEHIND SECRETARIAT, TRIVANDRUM. 3. CIRCLE INSPECTOR OF POLICE, MUSEUM POLICE STATION, MUSEUM, TRIVANDRUM. 4. SUB INSPECTOR OF POLICE, MUSEUM POLICE STATION, MUSEUM, TRIVANDRUM. 5. VINOD SANKAR, T.C.11/516, NANDA NAGAR, NANDANKODU, TRIVANDRUM. 6. VINCENT, S/O.ZACHARIA, MIZHIYOTTAVILA HOUSE, PATHEREPALLI WARD, KUDAPPANAKUNNU, TRIVANDRUM. BY ADV. SRI.RAM MOHAN.G. FOR R5 SRI.G.P.SHINOD FOR R5 SRI.MANU V. FOR R5 SRI.M.R.RAJESH FOR R6 SR.GOVT. PLEADER SRI.BENJAMIN PAUL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 21039/08 APPENDIX PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE JUDGMENT DATED 23.9.2004 IN O.S.NO.1026/2000 OF MUNSIFF'S COURT, TRIVANDRUM. EXT.P2 - TRUE COPY OF THE PETITION DATED 2.7.2008 FILED BEFORE THE 3RD RESPONDENT. EXT.P3 - TRUE COPY OF THE COMPLAINT FILED BEFORE THE DISTRICT COLLECTOR DT. 5.7.2008. EXT.P4 - TRUE COPY OF THE COMPLAINT FILED BEFORE THE KERALA WOMEN'S COMMISSION DT. 4.7.2008. EXT.P5 - TRUE COPY OF THE PETITION FILED BEFORE THE 2ND RESPONDENT. EXT.P6 - PHOTOGRAPHS OF THE HOUSE OF THE PETITIONER TAKEN ON 10.7.2008. EXT.P7 - TRUE COPY OF THE NEWS REPORT THAT CAME ON MADHYAMAM DAILY DT. 11.7.2008. EXT.P8 - PHOTOGRAPHS TAKEN ON 12.7.2008 EVIDENCING THE DEMOLITION OF THE HOUSE OF THE PETITIONER. EXT.P9 - TRUE COPY OF THE NEWS REPORT THAT CAME ON MADHYAMAM DAILY DATED 12.7.2008. EXT.P10 - TRUE COPY OF THE JUDGMENT DT. 9.1.2007 IN O.S.NO.24/2007. EXT.P11 - TRUE COPY OF THE SALE DEED NO.5452/1121 M.E. EXT.P12 - TRUE COPY OF THE SALE DED NO.3358/1988. RESPONDENTS' EXTS. EXT.R5(a) – TRUE COPY OF THE DELAY PETITION I.A.2303 OF 2008 IN A.S.NO.126 OF 2008 BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM. EXT.R5(b) – TRUE COPY OF THE BASIC TAX RECEIPT DATED 11.12.2007 EVIDENCING PAYMENT OF TAX. EXT.5(c) – TRUE COPY OF THE INJUNCTION PETITION, I.A.NO.2302 OF 2008 DATED 08.072008 IN A.S.NO.126 OF 2008 BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM. EXT.R5(d) - A TRUE PHOTO COPY OF THE SALE DEED NO.503 OF 1999 OF THE S.R.O., SASTHAMANGALAM. EXT.R5(e) – A TRUE PHOTO COPY OF THE SALE DEED NO.3767 OF 2007 OF THE S.R.O., SASTHAMANGALAM. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- W.P.(C) NO. 21039 OF 2008-D ----------------------------------------- Dated 28th August, 2008. JUDGMENT Balakrishnan Nair, J. The petitioner claims, she is residing in a property having an extent of 10 cents in Sy.No.125 of Sasthamangalam Village, Thiruvananthapuram district. She submits, the said property belonged to her father-in-law Pathrose Abraham and his wife Snehapoo Mary. They are no more. Her husband had eight brothers, who are living in various places. One of the brothers of the petitioner's husband Mr.Richard transferred five cents out of the above 10 cents of property to one Mr.P.M.Zacharia, posing himself as the sole legal heir of Pathrose Abraham and Snehapoo Mary. The legal heirs of the said Zacharia sold the property to Mr.Vincent, the 6th respondent herein. He in turn sold it to the 5th respondent Mr.Vinod Kumar. The petitioner submits, when the 6th respondent came to the property and WPC 21039/08-D 2 attempted to commit waste, she along with other legal heirs of her husband, filed O.S.No.1026/2000. In that case, the brothers and sisters of her husband, who are defendants 1 to 7 remained ex parte. Only the 8th defendant, who is the 6th respondent herein contested the matter. The main prayer in that suit was for declaration of plaintiffs' title over the property, on the strength of long, continuous and uninterrupted possession. The suit was dismissed for non-joinder of necessary parties on 23.9.2004. Ext.P1 is the judgment in that suit. The petitioner got certified copy of the judgment only on 29.9.2005. On coming to know that she was going to file an appeal against the said judgment, the defendants 1 to 7 told her that the matter can be settled. Therefore, she did not file the appeal in time. While so, on 2.7.2008, the 5th respondent came to the property along with a JCB and asked her to give vacant possession of the house immediately. She immediately, filed Ext.P2 complaint before the Museum Police Station. She also filed Ext.P3 representation before the District Collector. Ext.P4 complaint was filed before the Kerala Women's Commission also. Ext.P5 is the representation filed by her before the Assistant WPC 21039/08-D 3 Commissioner of Police, Cantonment, Thiruvananthapuram. The petitioner filed A.S.No.126/2008 against Ext.P1, along with a petition to condone the delay in filing the same and also an application for injunction. On coming to know that the appeal is coming up for hearing, the party respondents along with some local goondas, came to the property with a JCB and demolished a portion of her house and threw her belongings out. The petitioner, though immediately sought police protection, the police failed to discharge their duty. Aggrieved by the inaction of the police, this writ petition is filed, seeking the following relief: “(a) A writ of mandamus or any appropriate writ, direction or order, directing the respondents to give adequate police protection to the life and property of the petitioner from the respondents named above.” 2. The 5th respondent has filed a counter affidavit. According to him, the property was purchased in the name of Pathrose Abraham and Snehapoo Mary by the earnings of Richard, the brother-in-law of the petitioner. The same is evident from the title deed itself. When the parents were alive, he transferred half of the property in favour of the above said Zacharia. No one demurred. The purchaser carried out WPC 21039/08-D 4 mutation of the property in his favour and thereafter, he was in possession of the property. From the legal heirs of the above said Zacharia, the 6th respondent got the property, which in turn was assigned to the 5th respondent, it was submitted. The 5th respondent is also disputing the status of the petitioner as the legally wedded wife of Franklin. O.S.No.1026/2000 was filed by the petitioner and her children before the Munsiff's Court, claiming title over the property, on the strength of adverse possession. It was specifically found that her claim of adverse possession is unsustainable. The dispute regarding her marital status as the wife of Franklin was left open to be decided by the Family Court, for which a suit was pending before the Family Court. The 5th respondent denies the allegation of having trespassed into the property or demolished any structure. The petitioner has filed a reply affidavit, dealing with the averments of the 5th respondent and producing Ext.P8 series photographs to show the demolition of the building wherein she was residing. 3. The 5th respondent has filed an additional counter affidavit, in which he has stated that the suit pending before the Family Court as WPC 21039/08-D 5 O.S.No.24/1998 was dismissed by the Family Court by judgment dated 9.1.2007. The petitioner has suppressed the said fact while filing this writ petition. Therefore, the writ petition is liable to be dismissed on that ground alone. The 5th respondent submits that a shed constructed in the 5th cents of property belonging to him alone ha been demolished. 4. The learned counsel for the petitioner submitted that the Family Court has upheld the claim of the petitioner's children regarding their paternity. But, on technical grounds, the declaration sought by the petitioner that she is the legally wedded wife of Franklin was not allowed. The learned counsel for the 5th respondent handed over a copy of the judgment of the Family Court. It would show that the prayer of the petitioner to declare that she is the legally wedded wife of Franklin is disallowed. 5. We heard the learned counsel for the 6th respondent also, who supported the submissions of the 5th respondent. The learned Government Pleader submitted that since this is a civil dispute, the police directed the parties to approach the civil court. 6. We notice that as on this date, the claim of the petitioner that WPC 21039/08-D 6 she is the legally wedded wife of Franklin, who is having one-seventh right in the property, has been rejected by the Family Court. It is true, she has already filed an appeal against the decision of the Family Court. Further,the claim of the petitioner that she has perfected her title by adverse possession was also rejected by the competent court, by Ext.P1 judgment. It is true, against the said judgment, an appeal with a petition to condone the delay is pending before the appellate court. In view of the above and other facts pleaded, it is clear that the dispute between the parties is a bona fide civil dispute, which has to be settled by the civil court. The police shall interfere, if only they are directed by the competent civil court to do that. But, this will not affect the powers of the police to interfere, if any cognizable offence is committed by any one. 7. We notice that the petitioner has not correctly pleaded the facts before this Court. She has failed to plead about the dismissal of the suit by the Family Court. There is suppression of material facts by the petitioner. So, this Writ Petition is dismissed with costs. But, the dismissal of the writ petition will not affect the contentions of the WPC 21039/08-D 7 petitioner in the appeals filed by her. The courts concerned shall dispose of the appeals uninfluenced by this judgment. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/