IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 WP(C).No. 15098 of 2011(J) -------------------------- PETITIONER(S): --------------- FATHIMA BEEVI, AGED 50 YEARS, D/O.ALAVIKUTTY, KANNATIL HOUSE, NOW RESIDING AT SAFEWAY APARTMENTS, KEERTHI NAGAR, KOCHI-26. BY ADV. SRI.RENJITH THAMPAN RESPONDENT(S): --------------- 1. NOUSHAD, S/O.MUHAMMAD, THADATHIL HOUSE, MUKKATTA P.O., NILAMBUR, MALAPPURAM DISTRICT, PIN-679 330. 2. MUHAMMEDKUTTY, S/O.UNNIALI, KARUTHEDATH HOUSE, MUKKATTA P.O., NILAMBUR, MALAPPURAM DISTRICT, PIN-679 330. 3. SADIQ.O.T, S/O.MOHAMMED, PURAVANTHODI HOUSE, MUKKATTA P.O., NILAMBUR, MALAPPURAM DISTRICT, PIN-679 330. 4. AHAMMED, S/O.CHEKUTTY, KOTTOLI HOUSE, MUKKATTA P.O., NILAMBUR, MALAPPURAM DISTRICT, PIN-679 330. 5. SUB INSPECTOR OF POLICE, NILAMBUR POLICE STATION, MALAPPURAM DISTRICT, PIN-679 330. 6. CIRCLE INSPECTOR OF POLICE, NILAMBUR POLICE STATION, MALAPPURAM DISTRICT, PIN-679 330. WP(C).No. 15098 of 2011 7. SUPERINTENDENT OF POLICE, MALAPPURAM, MALAPPURAM DISTRICT, PIN-676 505. 8. A.MOHANAN, S/O.RAMAKRISHNAN, PRESIDENT, KALYANI GROUND SAMRAKSHANA SAMITHI, MUKKATTA P.O., NILAMBUR, MALAPPURAM DIST., PIN-679 330. R5 TO R7 BY GOVERNMENT PLEADER SMT. C.M. CHARISMA R1 TO R4 & R8 BY ADV. SRI.BABU S. NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15098 of 2011 APPENDIX PETITIOENR'S EXHIBITS: P1 : COPY OF THE REGISTERED DOCUMENT NO.5294/07 OF NILAMBUR REGISTRY. P2 : COPY OF THE PURCHASE CERTIFICATE DATED 24.07.76. P3 : COPY OF THE INJUCTION DECREE IN O.S.NO.214/1976 DATED 16.08.1979. P4 : COPY OF THE JUDGMENT IN WPC. NO.23218/2007 DATED 6.08.07. P5 : COPY OF THE JUDGMENT IN W.P.C. NO.1659/09 DATED 2303.2009. P6 : COPY OF THE BASIC TAX RECEIPT DATED 06.05.2010 P6(a) : COPY OF THE POSSESSION CERTIFICATE DATED 07.01.2010. P6(b) : COPY OF THE POSSESSION CERTIFICATE 19.05.2011. P7 : COPY OF THE SURVEY SKETCH SHOWING THE PETITION'S PROPERTY PREPARED BY THE VILLAGE OFFICER. P7(a) : COPY OF THE REPORT DATED 5.06.1978 FILED ALONG WITH SURVEY SKETCH IN OS NO.214/1976 OF THE MUNSIFF COURT. P8 : COPY OF THE SKETCH PREPARED BY THE COMMISSIONER IN OS NO.36/2008. P9 : COPY OF THE INJUNCTION ORDER DATED 28.01.2008 IN I.A. NO300/2008 IN OS NO.36/2008. P10 : COPY OF THE APPLICATION FILED BEFORE THE 5TH RESPONDENT DATED 27.05.2011. P11 : COPY OF THE RECEIPT ISSUED BY THE CIRCLE INSPECTOR OF POLICE DATED 27.05.2011. P11(a) : COPY OF THE RECEIPT ISSUED BY THE SUB INSPECTOR OF POLICE DATED 27.05.2011. RESPONDENT'S EXHIBITS: R1(a) : COPY OF THE PLAINT IN O.S. NO.36/2008 OF THE MUNSIFF COURT, MANJERI FILED BY THE PETITIONER. R1(b) : COPY OF THE WRITTEN STATEMENT FILED IN O.S. NO.36/2008 OF THE MUNSIFF COURT, MANJERI. //TRUE COPY// P.A. TO JUDGE smvd R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No.15098 of 2011 ------------------------------------------- Dated this the 27th June, 2011 JUDGMENT Basant, J. The petitioner has come to this Court seeking issue of directions under Article 226 of the Constitution of India to respondents 5 to 7, all police officials, to afford protection to the petitioner for her property against illegal, contumacious and culpable acts on the part of respondents 1 to 4 and 8. 2. According to the petitioner, her father had title over the property as per Ext.P2 purchase certificate. As there were attempts to make invasion into the right of the father of the petitioner over the property, he had filed Ext.P3 suit against five defendants including the 4th respondent herein. She has a further contention that the father of the first respondent was also a defendant in that suit. Pending suit, the father of the petitioner expired and the petitioner came on record to prosecute the said suit. An ex parte decree was passed against the defendants in that case and that decree is produced as Ext.P3. Armed with that ex parte WPC No.15098/2011 2 decree passed in 1979, the petitioner long later came before this Court seeking police protection. A Bench of this Court considered the said request and passed Ext.P4 judgment dated 6.8.2007. The Bench had taken note of the stand taken by the respondents therein supported by the learned Government Pleader that the disputed property is a play ground known as 'Kalyani Ground' which was allegedly being used by the members of the public as a public play ground for more than 50 years. 3. The learned judges in these circumstances were not satisfied that police protection can be granted to the petitioner on the strength of Ext.P3 decree. The petitioner was directed to take necessary steps in accordance with law by initiating proceedings before the competent civil court. 4. Subsequently, the other co-owners/legal heirs of her deceased father surrendered their rights in favour of the petitioner under Ext.P1 release deed. The petitioner applied for effecting mutation. That was not done by the Village Officer on the plea that the land in question is a public play ground. The petitioner came to this Court and by Ext.P5 judgment another Bench of this Court directed the petitioner to make a proper application. The authorities WPC No.15098/2011 3 were directed to consider such application and pass orders in accordance with law. On the strength of that, it is submitted that possession certificates, that is Ext.P6(a) and Ext.P6(b), have been issued in favour of the petitioner. The petitioner had made attempts to execute Ext.P3 decree. An execution petition was filed seeking that relief also. 5. True to the import of the directions in Ext.P4, the petitioner has now filed a civil suit as O.S.No.36 of 2008 arraying the 8th respondent and the first respondent herein in their capacity as President and Secretary respectively of the Kalyani Ground Samrakshana Samithi. In that suit, Ext.P9 interim order of injunction has been passed against respondents 1 and 8. The said suit is still pending. It has not been disposed of. Ext.P9 interim order was passed as early as on 28.1.2008. The said interim order of injunction has not been vacated. Written statement has already been filed in that suit and that suit is pending disposal. 6. At this juncture, the petitioner has come to this Court arraying respondents 1 and 8 as well as respondents 2 to 4 as party respondents, claiming police protection against them for the unobstructed enjoyment of the property in question-described as the Kalyani Ground. The WPC No.15098/2011 4 sum and substance of the contention of the learned counsel for the petitioner is that under Ext.P2 read along with Ext.P1 and in the light of Exts.P4 and P5 judgments of this Court as also Ext.P6 series possession certificates and Ext.P9 interim order, the petitioner is entitled for police protection against illegal attempts by respondents 1 to 4 and 8 to interfere with the enjoyment of the property by the petitioner. 7. Respondents 1 and 8 have entered appearance. They contend that the property in question is a public play ground. They attack Ext.P2 certificate of purchase as also all the subsequent efforts of the petitioner to assert a private right over this public play ground. The Panchayat has treated the property in question as a public play ground and has invested amounts for the development of the public play ground, contend the contesting respondents. The Panchayat has not made a party to any of these proceedings. According to the contesting respondents, the attempt of the petitioner is to conveniently secure decrees/orders against some members of the public and not tackle the bull by the horns. No attempt is made to get a declaration of title by the petitioner to establish her rights WPC No.15098/2011 5 as owner of the property as against the contentions raised by members of the public that it is a public play ground. Ext.P3 decree against some individuals in their individual capacity is not sufficient to resolve the real controversy. So far as Ext.P9 is concerned, the contesting respondent submits that the same is only an interim order. The suit is pending and it is not necessary to enable the petitioner to enforce the interim order of injunction by resort to proceedings under Article 226 of the Constitution. If the petitioner has a grievance that the interim order has been violated, appropriate proceedings under Order XXXIX Rule 2A of the Code of Civil Procedure must have been initiated alleging violation of the order pending disposal of the suit. The attempt of the petitioner, it is argued, is only to steal a march over the respondents and the members of the public in her attempt to assert private rights over a public play ground. 8. We have considered all the submissions. We do not intend to encumber records with any finding of fact. Suffice it to say that we are certainly of the opinion that this is not a fit case where the interim order Ext.P9 passed by the Munsiff's Court deserves to be enforced not only against the WPC No.15098/2011 6 parties to the suit, but also against others by invoking the extraordinary constitutional jurisdiction vested in us under Article 226 of the Constitution of India. We are hence of the opinion that the prayer for an order of police protection cannot be accepted. It is certainly for the petitioner to decide whether the suit ought to be laid against all the members of the public in representative capacity. At any rate, before the suit in which Ext.P9 order has been passed, is disposed of in accordance with law, we are not persuaded to invoke our extraordinary jurisdiction to grant police protection for the enforcement of Ext.P9 interim order directed against the first and eighth respondents only. 9. With the above observations, this writ petition is dismissed. sd/- R.BASANT JUDGE sd/- K.SURENDRA MOHAN JUDGE css/ WPC No.15098/2011 7 WPC No.15098/2011 8 R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No.15098 of 2011 ------------------------------------------- Dated this the 6th June, 2011 ORDER Basant, J. Heard. Admitted. Notice given and the learned Government Pleader appears for respondents 5 to 7. Issue notice to respondents 1 to 4 and 8. The learned counsel for the petitioner prays and accordingly, the petitioner is permitted to take out notice to respondents 1 to 4 and 8 by special messenger. Verify service and call again on 13.6.2011. R.BASANT JUDGE K.SURENDRA MOHAN JUDGE css/