IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 21127 of 2011(M) -------------------------------- PETITIONER(S): ----------------- 1. IRUKULANGARA MUHAMMED,S/O.ALASSANKUTTY, AGED 82 YEARS,KANNAMANGALAM POST,TIRURANGADI TALUK MALAPPURAM DISTRICT. 2. KUNNEKKADAN BIRIYAKUTTY UMMA, W/O.IRUKULANGARA MUHAMMED,AGED 75 YEARS, -DO- -DO- BY ADV. SRI.K.P.SUDHEER SMT.M.SINDHU THANKAM RESPONDENT(S): ------------------- 1. THE SUPERINTENDENT OF POLICE, MALAPPURAM-676505. 2. THE CIRCLE INSPECTOR OF POLICE, MALAPPURAM-676505. 3. THE SUB INSPECTOR OF POLICE,VENGARA POLICE STATION,VENGARA-676304,MALAPPURAM DISTRICT. 4. THE TAHSILDAR,TIRURANGADI TALUK, TIRURANGADI-676306,MALAPPURAM DISTRICT. 5. THE VILLAGE OFFICER,KANNAMANGALAM- 676318,MALAPPURAM DISTRICT. 6. THE ADDITIONAL TALUK SURVEYOR, TIRURANGADI-676304,MALAPPUPRAM DISTRICT. WP(C).No. 21127 of 2011(M) -2- 7. CHOOLAN,S/O.KOTTADAN NEELANDAN, KOTTADAN HOUSE,KANNAMANGALAM POST-676318, KANNAMANGALAM,MALAPPURAM DISTRICT. 8. VELAUDHAN,S/O.KOTTADAN PERVAN, -DO- -DO- 9. AYYAPPAN,S/O.KOTTODAN PERVAN, -DO- -DO- * ADDL. RESPONDENTS 10. KRISHNAN, S/O MUNDAN, KOTTADAN HOUSE, KANNAMANGALAM POST - 676318, KANNAMANGALAM, MALAPPURAM DISTRICT. 11. RAJAN, S/O MUNDAN, KOTTADAN HOUSE, KANNAMANGALAM POST - 676318, KANNAMANGALAM, MALAPPUPRAM DIST. 12. MINI, D/O MUNDAN, KOTTADAN HOUSE, KANNAMANGALAM POST - 676318, KANNAMANGALAM, MALAPPURAM DISTRICT. 13. ITHAKLU, W/O MUNDAN, KOTTADAN HOUSE, KANNAMANGALAM POST - 676318, KANNAMANGALAM, MALAPPURAM DISTRICT *[ADDL. RESPONDENTS 10 TO 13 ARE IMPLEADED AS PER ORDER ON I.A.15042/11 DT.14/10/11] ADV. SRI.C.M.MOHAMMED IQUABAL FOR R7 TO 9 SRI.C.M.MOHAMMED IQUABAL FOR ADDL R10,12,13 GOVT. PLEADER SMT.K.T.LILLY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21127 of 2011(M) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE COPY OF PLAN PREPARED BY THE ADVOCATE COMMISSIONER IN FINAL DECREE PROCEEDINGS IN O.S. NO.106/83 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.P2:- TRUE COPY OF DELIVERY REPORT OF THE AMIN IN O.S. NO.106/83 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.P3:- TRUE COPY OF DELIVERY REPORT OF THE AMIN IN O.S. NO.106/83 ON THE FILE OF THE MUNSIFF'S COURT, PARAPPANANGADI. EXT.P4:- TRUE COPY OF THE DECREE DATED 20/06/02 IN O.S. NO.93/01 PASSED BY MUNSIFF'S COURT, PARAPPANANGADI. EXT.P5:- TRUE COPY OF THE DECREE DATED 20/06/02 IN O.S. NO.94/01 PASSED BY MUNSIFF'S COURT, PARAPPANANGADI. EXT.P6:- TRUE COPY OF THE JUDGMENT DATED 19/01/94 IN C.C. NO.674/91 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE'S COURT, PARAPPANANGADI. EXT.P7:- TRUE COPY OF JUDGMENT DATED 31/07/02 IN SESSIONS CASE NO.201/2000 ON THE FILE OF THE SESSIONS COURT, MANJERI. EXT.P8:- TRUE COPY OF ORDER DATED 05/07/08 IN E.P. NO.428/07 IN O.S. NO.93/01 PASSED BY MUNSIFF'S COURT, PARAPPANANGADI. EXT.P9:- TRUE COPY OF ORDER DATED 05/07/08 IN E.P. NO.429/07 IN O.S. NO.94/01 PASSED BY MUNSIFF'S COURT, PARAPPANANGADI. EXT.P10:- TRUE COPY OF THE JUDGMENT DATED 18/09/08 IN W.PC.NO.27464/08 PASSED BY THIS HON'BLE COURT. EXT.P11:- TRUE COPY OF LETTER DATED 10/11/08 ISSUED BY THE 6TH RESPONDENT. EXT.P12:- TRUE COPY OF THE NOTICE DATED 28/11/08 ISSUED BY THE 4TH RESPONDENT. EXT.P13:- TRUE COPY OF NOTICE DATED 18/06/09 ISSUED BY THE 4TH RESPONDENT. EXT.P14:- TRUE COPY OF JUDGMENT DATED 13/07/09 IN CONTEMPT OF COURT CASE NO.494/09 PASSED BY THIS HON'BLE COURT. EXT.P15:- TRUE COPY OF APPLICATION DATED 21/07/08 FILED BY THE 1ST PETITIONER IN E.P. NO.428/07 IN O.S. NO.93/01 BEFORE THE MUNSIFF'S COURT, PARAPPANANGADI AND THE ENDORSEMENT MADE BY THE PRESIDING OFFICER. WP(C).No. 21127 of 2011(M) EXT.P16:- TRUE COPY OF APPLICATION DATED 21/07/08 FILED BY THE 2ND PETITIONER IN E.P. NO.429/07 IN O.S. NO.94/01 BEFORE THE MUNSIFF'S COURT, PARAPPANANGADI AND THE ENDORSEMENT MADE BY THE PRESIDING OFFICER. EXT.P17:- TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT DATED 13/06/11. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ W. P. C. No.21127 of 2011 ------------------------------------------------ Dated this the 13th day of October, 2011 JUDGMENT Abdul Rehim, J The petitioners are husband and wife at the age of 82 years and 75 years, respectively. Averments in the Writ Petition reveals a chequered history of civil litigations fought out by the petitioners with respect to an immovable property purchased by them as early as in the year 1972. For brevity, we are not narrating history of the civil litigations fought out between the petitioners and respondents 7 to 13. It is evident that Exts.P4 and P5 Decrees were obtained by the petitioners against respondents 7 to 9, restraining them from trespassing into the property in question or from residing in the shed constructed therein or from tampering in any manner with the nature of the property, its possession and enjoyment by the petitioners. 2. Sri.K.P.Sudheer, learned counsel for the petitioners points out that, when the respondents 7 to 9 violated the terms of the decrees, execution was levied and in E.P. Nos.428/07 and 429/09 W. P. C. No.21127 of 2011 -2- filed before the Munsiff's Court, Parappanangadi, police protection was granted to the petitioners. But despite the defendants in the suit obstructed construction of compound wall in the property. Then Exts.P15 and P16 applications were filed by the petitioners before the Execution Court. But those applications were not entertained observing that delivery of the property has already been effected as per orders in the execution applications and police protection was also granted. It was observed by the Execution Court that the petitioners can seek assistance of the Revenue authorities for fixation of boundary in accordance with the delivery effected from the court. Thereafter, the petitioners approached the Revenue authorities and the boundary of the property was measured and demarcated by the Taluk Surveyor, as evident from Exts.P11 and P12. It is the allegation that, inspite of fixation and demarcation of the boundary, the respondents 7 to 13 are still causing physical obstructions and that the petitioners are prevented from entering into the property or from constructing compound wall. According to the petitioners, even though Ext.P17 complaint was submitted before respondents 1 to 3, no effective steps are taken to afford protection to the W. P. C. No.21127 of 2011 -3- petitioners or to the construction of the compound wall. 3. Respondents 10 to 13 are impleaded as additional respondents on the basis of contentions raised by respondents 7 to 9. They are legal heirs of one “Mundan”, who were unsuccessful in a suit filed as O.S.31/1986, before the Munsiff's Court for redemption of the property in question. The respondents 7 to 13, except 11, have filed counter affidavit and contended that there exist civil disputes with respect to the property of the petitioners and that any grant of police protection from this Court will cause prejudice to the interests of the contesting respondents. But we notice that Exts.P4 and P5 decrees as well as the decree in O.S.31/1986 have attained finality and the property was delivered to the petitioners in execution. It is also evident that the execution court had ordered police protection for enjoyment of the property by the petitioners. Further we notice that, the dispute regarding boundary if any existed also stands settled, since the competent authority had conducted measurement and demarcation. We are of the considered opinion that the respondents 7 to 13 cannot be permitted to circumvent the decrees which had attained finality. Nobody is entitled to W. P. C. No.21127 of 2011 -4- prevent the petitioners from enjoying fruits of the decrees, through muscle power. If a situation like that of the case is permitted to continue the society at large will loose faith in the legal system and no rule of law can survive. However, since the matter comes within the purview of execution of the decrees, we are proposing to relegate the petitioners to seek remedy from the Execution Court. 4. Under the above mentioned circumstances, the Writ Petition is disposed of granting liberty to the petitioners to file execution applications before the Munsiff's Court, Parappanangadi seeking construction of the compound wall under supervision of the court, by an Advocate Commissioner. If such applications are received, that court shall entertain the same and issue appropriate orders with notice to the defendants/judgment debtors for deputing an Advocate Commissioner for construction of the compound wall in the property delivered to the petitioners through process of the court, in terms of the boundary demarcated by the competent Revenue authorities, as per Exts.P11 and P12, with assistance and protection of respondents 1 to 3. Disposal of the applications, if any filed in this regard shall W. P. C. No.21127 of 2011 -5- be done at the earliest possible, at any rate within a period of one month from the date of receipt of such applications. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-