IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 WP(C).No. 31051 of 2008(V) -------------------------- PETITIONER(S): --------------- 1. DEVASYA, S/O.MAANL, AGED 57, PATHANIKADU HOUSE, RAMALLOOR KARA, KOTHAMANGALAM VILLAGE. 2. ELSY, W/O. DEVASYA, AGED 56 PATHANIKADU HOUSE, RAMALLOOR KARA, KOTHAMANGALAM VILLAGE. BY ADV. SRI.G.KRISHNAKUMAR SRI.LITTO VARGHESE PALATHINKAL RESPONDENT(S): --------------- 1. SUPERINTENDENT OF POLICE, O/O.SUPERINTENDENT OF POLICE,ALUVA. 2. S.I. OF POLICE, KOTHAMANGALAM. 3. JOSEPH, S/O. MAANI AGED 70, PATHANICKATTU HOUSE, RAMALLOOR KARA, KOTHAMANGALAM VILLAGE, 4. JAIMON,S/O. JOSEPH AGED 33, PATHANICKATTU HOUSE, RAMALLOOR, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. ADV. SRI.ALEXANDER JOSEPH FOR R4 GOVT. PLEADER SRI.P.A.SALIM – R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 31051/2008 APPENDIX PETITIONERS' EXTS. EXT.P1 - PHOTO COPY OF THE IA 164/08 IN O.S.366/06 ON THE FILE OF MUNSIFF'S COURT, MUVATTUPUZHA. EXT.P2 - PHOTO COPY OF THE JUDGMENT DATED 14.1.2008 IN O.S.366/06. EXT.P3 - PHOTO COPY OF THE COMMISSION REPORT IN E.P.38/08. EXT.P4 - PHOTO COPY OF THE SKETCH PREPARED BY THE COMMISSIONER IN E.P.38/08. EXT.P5 - PHOTO COPY OF THE ORDER DATED 26.3.2008 IN E.A.68/2008 IN E.P.38/2008 OF THE MUNSIFF'S COURT, MUVATTUPUZHA. EXT.P6 - PHOTO COPY OF THE COMPLAINT DATED 9.10.2008 PREFERRED BEFORE THE 2ND RESPONDENT. EXT.P7 - PHOTO COPY OF THE COMPLAINT DATED 10.10.2008 PREFERRED BEFORE THE FIRST RESPONDENT. RESPONDENTS' EXTS. EXT.R4(a) - TRUE COPY OF THE PARTITION DEED NO.1695/69 DATED 25.6.69. EXT.R4(b) - TRUE COPY OF THE SALE DEED NO.1851/99 DATED 30.3.99. EXT.R4(c) – TRUE COPY OF THE INJUNCTION ORDER DATED 24.10.08 IN I.A.NO.3507/08 IN O.S.NO.507/08. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- W.P.(C) NO. 31051 OF 2008-V ----------------------------------------- Dated 29th October, 2008. JUDGMENT Balakrishnan Nair, J. The petitioners claim right over three items of property. When the 3rd respondent, who is the brother of the 1st petitioner, tried to trespass into that property, the petitioners moved the Munsiff's Court, Muvattupuzha, by filing O.S.No.366/2006. The matter was settled between the parties. Based on a compromise petition, the suit was decreed. The 3rd respondent undertook not to trespass into the plaint schedule items or interfere with the possession of them by the petitioners. The petitioners submit, thereafter when the 3rd respondent and his son, the 4th respondent herein tried to trespass into the property, they moved the Munsiff's Court for police protection. The learned Munsiff passed Ext.P5 order, directing the police to grant protection, so that the decree holders can enjoy the fruits of the decree. Since the WPC 31051/08 2 police did not extend any help, the 1st petitioner preferred Ext.P6 representation before the police. Alleging that even thereafter no action was taken, the petitioners moved the District Superintendent of Police, Aluva, by filing Ext.P7 representation. Those representations were of no avail, it is submitted. Hence this writ petition, seeking to issue a writ of mandamus against respondents 1 and 2, who are police officers, to grant effective protection to the petitioners from respondents 3 and 4, their men and agents. 2. The 4th respondent has filed a counter affidavit. He submits, the 1st petitioner's father had eight children. The said person (grandfather of the 4th respondent) settled his properties as per Ext.R4 (a) settlement deed among his children. Though the properties were divided as per separate schedules and allotted, the right of way, the right to take cattle to the agricultural field and the right to get water through the existing thodu were protected and it was specifically provided in Ext.R4(a) that those rights can be exercised by the donees under Ext.R4(a), irrespective of the partition as per the schedules. The 4th respondent submits, he obtained 10 cents of land from one of the WPC 31051/08 3 brothers of the 1st petitioner, who has been allotted an item of property as per Ext.R4(a) settlement deed. So, the 4th respondent claims a right of way through the property owned by the 1st petitioner. The exercise of the said right is sought to be prevented by the petitioners. So, he has moved the civil court and obtained Ext.R4(c) injunction order restraining the 1st petitioner from causing obstruction to his right of way. The 4th respondent further submits that he is not bound by the compromise decree or Ext.P5 order of the Munsiff's Court. Under the guise of the compromise decree and that order, the 4th respondent is sought to be deprived of his right, with the assistance of the police. With that purpose this writ petition is filed, it is submitted. 3. The petitioners did not file any reply affidavit, but submitted that Ext.R4(c) injunction order was obtained after receipt of notice in this writ petition. 4. We heard the learned Government Pleader for the official respondents also. Having regard to the nature of the dispute between the petitioners and the 4th respondent, no protection could be granted, as claimed in this writ petition. The petitioners have to work out their WPC 31051/08 4 remedies before the civil court. But, the learned counsel for the petitioners prayed for protection to their lives. We feel that having regard to the nature of the dispute between the parties, if protection for life is ordered, the same will be used to tilt the balance in the civil dispute between the parties. So, the petitioners may invoke the ordinary remedies available to them under the Civil and Criminal Procedure Codes, to redress their grievance. Without prejudice to that right, the Writ Petition is dismissed. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/