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 12TH AUGUST 2008 / 21ST SRAVANA 1930 WP(C).No. 21547 of 2008(M) ----------------------------------------- PETITIONERS: ----------------------- 1. RAYAPPAN,S/O. RAMAKRISHNAN NADAR, VARUVILAKATHU VEEDU, MURIANKARA DESOM, PARASSALA VILLAGE. 2. SARASWATHI, W/O.RAYAPPAN,VARUVILAKATHU VEEDU, MURIANKARA DESOM,PARASSALA VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN SMT.SURYA SASI RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT IN THE DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT SUPERINTENDENT OF POLICE (RURAL), THIRUVANANTHAPURAM 3. CIRCLE INSPECTOR OF POLICE, PARASSALA, THIRUVANANTHAPURAM. 4. SUB INSPECTOR OF POLICE,THIRUVANANTHAPURAM 5. RAJAM, W/O. BAPIST, PAPPANAMTHOTTATHU KIZHEVEETTIL, KARUMANOOR DESOM, PARASSALA VILLAGE. 6. SHAIJU, S/O.BAPIST, PAPPANAMTHOTTATHU KIZHEVEETTIL, KARUMANOOR DESOM, PARASSALA VILLAGE. Kss ..2/- ..2..... WPC.NO.21547/2008 M 7. BIJOY, S/O. BAPIST, PAPPANAMTHOTTATHU KIZHEVEETTIL, KARUMANOOR DESOM, PARASSALA VILLAGE. 8. VIJAYAM,W/O. JERALAD, PAPPANAMTHOTTATHU KIZHEVEETTIL, KARUMANOOR DESOM, PARASSALA VILLAGE. 9. JOY, S/O.JERALAD, PAPPANAMTHOTTATHU KIZHEVEETTIL, KARUMANOOR DESOM, PARASSALA VILLAGE. BY SR. GOVERNMENT PLEADER SRI. BENJAMIN PAUL ADV. SRI.B.KRISHNA MANI FOR R5 TO 9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.21547/2008 M APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF IDENTITY CARD AND PASS BOOK HAVING NUMBER KL TVM LD 955 ISSUED TO THE 1ST PETITIONER. EXT.P2: COPY OF JUDGMENT IN I.A.NO.3342 OF 1984. EXT.P3: COPY OF DECREE DTD. 04/04/2008 IN AS.NO.712/94. EXT.P4: COPY OF COMPLAINT DTD. 15/07/2007 FILED BEFORE THE 4TH RESPONDENT. EXT.P5: COPY OF COMPLAINTS DTD. 18/07/2007 AND 27/07/2007. EXT.P6: COPY OF REPRESENTATION DTD. 04/09/2007 SUBMITTED BEFORE THE CHIEF MINISTER OF KERALA. EXT.P7: COPY OF PETITION DTD. 29/03/2008 SUBMITTED BEFORE THE 4TH RESPONDENT. EXT.P8: COPY OF RECEIPT EVIDENCING DESPATCH OF EXHIBIT P7. RESPONDENT'S EXHIBITS: EXT.R5(A): COPY OF THE DISCHARGE SUMMARY. EXT.R5(B): COPY OF THE NOTICE DTD. 12/09/2007 ISSUED BY THE KERALA VANITHA COMMISSION. EXT.R5(C): COPY OF THE NOTICE DTD. 22/04/2008 ISSUED BY THE SUB INSPECTOR OF POLICE, PARASSALA. /TRUE COPY/ P.A.TO JUDGE Kss K.BALAKRISHNAN NAIR & M.C. HARI RANI, JJ ============== W.P.(C).No. 21547 OF 2008 ==================== Dated this the 12th day of August, 2008. J U D G M E N T BALAKRISHNAN NAIR, J The petitioners claim possession and ownership of 10 cents of land comprised in Sy.No.131/6 of Parassala Village by virtue of two gift deeds executed by the mother of the 2nd petitioner. The said property assigned to them was lying as part of a large extent of land. Therefore a suit was filed for partition of that property by the petitioners. The suit was decreed. Ext.P2 is the judgment in that partition suit. The judgment and decree were challenged before the Sub Court, Neyyattinkara and the Sub Court set aside the final decree and remanded the matter to the trial court for fresh disposal. Challenging the order of remand, the petitioners filed C.M.A.No.272/1999 before this Court. This Court directed the Sub Court itself to dispose of the appeal on merits, without remand. Now, the Sub Court has passed Ext.P3 decree. The same shows that the appeal filed against Ext.P2 is dismissed. That means, Ext.P2 judgment is confirmed. The W.P.(C).No. 21547 OF 2008 2 petitioners submit that by the above proceedings, their right over the property is declared by the civil court. Respondents 5 to 9 are causing obstructions to the enjoyment of the property by the petitioners. Whenever the 2nd petitioner goes there to take yield, respondents 5 to 9 accost her and abuse and threaten her. They also commit theft of the coconuts and jackfruits from the property. So, the 2nd petitioner has preferred Exts.P4 and P5 representations before the police officers for protection. She also filed Ext.P6 petition before the Government. But they were of no avail. Again, she filed Ext.P7 petition before the Sub Inspector of police alleging that she had been manhandled on 28.3.2008. Then also the police did not taken any action. Therefore, this writ petition is filed seeking the following reliefs: a) Issue a writ in the nature of mandamus or other appropriate writ, order of direction commanding respondents 1 to 4 to accord adequate protection to the lives of the petitioners from respondents 5 to 9. b) Issue a writ in the nature of mandamus or other appropriate writ, order or direction commanding respondents 1 to 4 to accord adequate protection to the life of the petitioners from respondents 5 to 9 for the enjoyment of the property of 10 cents in Sy.No.131/6 of Parassala Village. W.P.(C).No. 21547 OF 2008 3 2. Respondents 5 to 9 have filed a counter affidavit in which they deny the allegations of the petitioner. 5th respondent submits that, on 28.3.2008, she was in the Medical College Hospital, attending her son Byju, who was admitted there on 25.3.2008. He was discharged only on 12.4.2008. She further submits that respondents 6 and 7 are students. 8th respondent is another lady and 9th respondent is her son who is also a student. They are the relatives of the 1st defendant in Ext.P3. Going by Ext.P2, it is clear that the petitioners are not in possession of the property. Ext.P3 decree has so far not been executed. It is also submitted that the 1st defendant in Ext.P3 is proposing to file a second appeal before this Court. So, the decree has not become final. Admittedly, the petitioners are not in possession. They want to take possession of the property by availing police protection raising false allegations against respondents 5 to 9, who are not parties to the decree. Learned Government Pleader on instructions submitted that in fact petitioners are harassing party respondents by repeatedly filing petitions making unfounded allegations against them. W.P.(C).No. 21547 OF 2008 4 3. If respondents 5 to 9 are trespassing into the property belonging to the petitioners, their remedy is to move the competent civil court and seek reliefs. But of late, it has become an order of the day to abuse the process of this court by bringing up civil disputes before this Court and call upon this Court to adjudicate the civil matter and ask the police to render assistance to persons in favour of whom this Court had rendered the decision. This is one such attempt. As pointed out by the party respondents, Ext.P2 would show that petitioners are not in possession of the plot assigned to them, though the decree is in their favour. The relevant portion of the said judgment reads thus: “6. Plaintiffs are allowed to have separate possession of BCSR plot in Ext.C3(a) plan. Plaintiff's right over this plot is hereby declared. Defendants shall demolish the shed on the plaint B schedule identified as plot BCSR in Ext.C3(a) plan within one month from today and hand over possession of the plot to the Plaintiffs. If the defendants do not demolish the shed as directed above plaintiff may get the same demolished at the defendants' cost. Plaintiffs are allowed to put up boundaries on CS, SR and BR lines at their own cost through court. As equalisation value plaintiffs are entitled to receive Rs.431/- from the defendants and the amount shall be a charge on the defendants' property. Ext.C3(a) plan shall be appended to this decree.” (emphasis applied). W.P.(C).No. 21547 OF 2008 5 4. The decree in this suit is not so far executed and they have not been put in possession of the plot BCSR. Since the petitioners are not in possession of the property, they cannot normally complain about trespass into the property by others. But the learned counsel for the petitioners submits that the party respondents have no semblance of right or interest over the property and so, they are unnecessarily interfering in the matter. 5. We find it difficult to accept the above contention. In the light of the affidavit filed by the respondents and the submission made by the learned Government Pleader, we cannot accept the contentions raised by the petitioners that they are in possession and the party respondents are trying to interfere with it unnecessarily. Since, admittedly the decree is not executed the claim of possession of the petitioners cannot be accepted. We find that there is considerable force in the submission of the party respondents that the petitioners, without executing the decree, are trying to take possession of the property by circumventing the execution proceeding by filing this writ petition. Respondents 5 to 9 who are strangers to the decree are W.P.(C).No. 21547 OF 2008 6 deliberately impleaded without impleading the judgment debtors. We feel that this is plainly an abuse of the process of the Court. Therefore the writ petition fails and it is dismissed with costs. K.BALAKRISHNAN NAIR, JUDGE M.C. HARI RANI, JUDGE bkn/-