IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 WP(C).No. 31738 of 2007(C) --------------------------------------- PETITIONER: ------------------- THANKAMMA, AMBILI BHAVANAM, THAMARAKULAM P.O.,THAMARAKULAM. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL), ADV. SRI.A.R.DILEEP. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT IN THE DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SUPERINTENDENT OF POLICE, ALAPPUZHA, PIN - 688 001. 3. THE CIRCLE INSPECTOR OF POLICE, MAVELIKKARA, ALAPPUZHA DISTRICT- 690 101. 4. THE SUB INSPECTOR OF POLICE, NOORANADU POLICE STATION, MAVELIKKARA - 690 101. 5. JAGATHAN, CHANGURETHU VEEDU, THAMARAKULAM P.O., THAMARAKULAM VILLAGE, ALAPPUZHA, PIN - 690 530. BY GOVT. PLEADER SRI.P.A. SALIM, ADV. SRI.P.SREEKUMAR, ADV. SRI.K.S.MANU (PUNUKKONNOOR). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 31738/2007-C: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE SETTLEMENT DEED NO. 1939/2003 OF NOORANADU SUB REGISTRY. EXT.P.2: COPY OF THE JUDGMENT DTD. 12/06/2007 IN O.S. NO. 120/2007. EXT.P.3: COPY OF THE DECREE DTD. 12/06/2007 IN O.S. NO. 120/2007. EXT.P.4: COPY OF THE FIR NO. 160/2007 OF NOORANADU POLICE STATION. EXT.P.5: COPY OF THE RECEIPTS OF PETITIONS DTD. 27/06/2007 AND 28/07/2007. EXT.P.6: COPY OF THE AFORESAID PETITION DTD. 21/10/2007 SUBMITTED BY THE PETITIONER BEFORE THE R.5. RESPONDENT'S EXHIBITS: EXT.R5.A: COPY OF THE SALE DEED NO. 5742/1950. EXT.R5.B: COPY OF THE DOCUMENT NO. 363/2000 EXECUTED IN FAVOUR OF THE PETITIONER. EXT.R5.C: COPY OF THE SALE DEED NO 5742/1950EXT.P.4. COPY OF THE PETITION DTD. 12/07/2007. //TRUE COPY// prv. K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------- W.P.(C).NO.31738 OF 2007- C -------------------------------------------------------------- Dated this the 17th day of January, 2008. JUDGMENT Balakrishnan Nair, J: The petitioner claims possession and ownership of 3 Ares of land in re-survey No.422/5/2 of Thamarakulam Village of Mavelikkara Taluk. She traces her title to that property based on Ext.P1 settlement deed. The 5th respondent is her step son, i.e., her husband's son in the first marriage. He was residing with her. The residential building in the property was only a hut. Now, it is demolished and for the construction of a new building, foundation is laid. Since, the 5th respondent obstructed the construction of the building, the petitioner and her children moved the civil court and obtained Ext.P3 decree against him. By the said decree, the civil court injuncted him from trespassing into the plaint scheduled property or interfering with the construction of the building there or committing any waste. Notwithstanding the said decree, the petitioner submits, the 5th respondent came to the property and manhandled her and her physically handicapped son. Her son's WPC.NO.31738/2007 . 2 wheel chair was also damaged. So, she filed a complaint before the Magistrate's Court which was forwarded to the police and a crime was registered against him. Even now, the 5th respondent is continuing his obstruction and is threatening the petitioner and her children. Therefore, she moved the police for protection to her life and her children and also for peaceful enjoyment of the property. When no help was forthcoming from the police, this writ petition is filed seeking the following reliefs:- a. “issue a writ in the nature of mandamus or other appropriate writ, order or direction commanding respondents 3 and 4 to accord adequate protection to the life of the petitioner and her family members and also to accord adequate protection to the petitioner and her family members for the beneficial enjoyment of residential property comprised in survey No.422/5/2 of Thamarakulam Village as secured by Ext.P3 decree; b. issue such other writ direction or orders as are deemed fit and proper.” 2. The learned Government Pleader, upon instructions, submitted that the dispute between the petitioner and her step son is concerning the right of the step son to reside in the building, which is going to be re-constructed. The 5th respondent has filed WPC.NO.31738/2007 . 3 a counter affidavit in which he denied all the allegations of the petitioner. He submitted that he is a physically handicapped person. He cannot move his left hand freely. He earn his livelihood by helping a fish vendor in the market. He did not even seek partition of the property. He submitted that he had not caused any obstruction or damage as stated in the suit. The suit was decreed ex parte as owing to abject poverty, he could not defend the suit. In fact, the petitioner has got only undivided share in the family property which originally belonged to petitioner's husband, late Narayanan, his mother and his brother. Now, the other persons, who have interest in the property, have filed Ext.R5 (c) suit for partition. In Ext.P2 suit none of the legal heirs other than the 5th respondent was made party, it is submitted. Therefore, the said judgment is not binding on them. In Ext.R5(c) suit, they have prayed to set aside the assignment made by the petitioners' husband in her favour in Ext.P1. They also claim partition of the property. The 5th respondent also submitted that he is being harassed by the petitioner and her supporters. After the death of his father, he was thrown out from the residential building and he took shelter in a cow shed and the said shed was burned by the petitioner's people and he is on the street now. So, WPC.NO.31738/2007 . 4 he prays for dismissal of the writ petition. The petitioner has filed a reply affidavit denying the allegations of the 5th respondent. 3. Heard the learned counsel on both sides. Having regard to the nature of the allegations and the counter allegations, we feel that this is not a fit case where the police should be asked to interfere. If the petitioner has obtained a decree and if the judgment debtor violates it, the police cannot be asked to execute the decree. We are also not satisfied that the petitioner's life is in danger because of the threat from the part of the 5th respondent. Accordingly, we decline to exercise our jurisdiction under Article 226 of the Constitution of India. The petitioner can invoke the ordinary remedy available to her under the Codes of Civil Procedure and Criminal Procedure, without prejudice to her contentions and her right to move other forums for appropriate reliefs, the writ petition is dismissed. K. BALAKRISHNAN NAIR, JUDGE. P.N. RAVINDRAN, JUDGE. cl WPC.NO.31738/2007 . 5 WPC.NO.31738/2007 . 6