IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 WP(C).No. 14058 of 2011(F) -------------------------------------- PETITIONER: ------------------- MANOJ .K., AGED 30 YEARS, S/O.SANKARAN (LATE), KARUNDAKAL HOUSE, BHOOTHANAM VELLILAMADU, KURUMBILANGAD VILLAGE, NILAMBUR TALUK, P.O.BHOOTHANAM COLONY-679 334, MALAPPURAM DISTRICT. BY ADV. SRI.P.VENUGOPAL. RESPONDENTS: ------------------------ 1. PADMANABHAN, S/O.KUNDU, 2. RATHEESH, S/O.PADMANABHAN, 3. VINESH, S/O.PADMANABHAN, RESPONDENTS 1 TO 3 ARE RESIDING AT: AT MANHAMKUZHI HOUSE, BHOOTHANAM VELLILAMADU, KURUMBILANGAD VILLAGE, NILAMBUR TALUK, P.O.BHOOTHANAM COLONY-679 334, MALAPPURAM DISTRICT. 4. THE SUB INSPECTOR OF POLICE, POTHUKAL POLICE STATION, MALAPPURAM DISTRICT – 676 505. 5. THE CIRCLE INSPECTOR OF POLICE, NILAMBUR CIRCLE, MALAPPURAM DISTRICT – 679 329. 6. THE SUPERINTENDENT OF POLICE, MALAPPURAM – 676 505. R1 TO R3 BY ADV. SRI.K.M.SATHYANATHA MENON, R4 TO R6 BY GOVT. PLEADER SRI. I.V. PRAMOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14058/2011-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RELEASE DEED (DOCMENT NO:5145/2007 OF SRO, EDAKKARA) EXECUTED IN FAVOUR OF THE PETITIONER. EXT.P.2: COPY OF THE ROUGH SKETCH OF THE PROPERTY OF THE PETITIONER AND ITS ADJACENT PROPERTIES. EXT.P.3: COPY OF THE JUDGEMENT OF THE HON'BLE MUNSIFF COURT, MANJERI IN O.S. NO.341/2005 DTD. 16/09/2009. EXT.P.4: COPY OF THE REPRESENTATION DTD. 15/09/2010 SUBMITTED BY THE MOTHER OF THE PETITIONER TO THE R.4. EXT.P.5: COPY OF THE REPRESENTATION DTD. 19/09/2010 SUBMITTED BY THE MOTHER OF THE PETITIONER TO THE R.4. EXT.P.6: COPY OF THE REPRESENTATION SUBMITTED BY THE MOTHER OF THE PETITIONER TO THE R.4. ON 15/10/2010. EXT.P.7: COPY OF THE RECEIPT DTD. 15/10/2010 ISSUED BY THE R.4. EXT.P.8: COPY OF THE REPRESENTATION SUBMITTED BY THE MOTHER OF THE PETITIONER TO THE R.4. ON 21/10/2010 (ALONG WITH ITS POSTAL RECEIPT). EXT.P.9: COPY OF THE REPRESENTATION SUBMITTED BY THE MOTHER OF THE PETITIONER TO THE R.5 ON 09/11/2010. EXT.P.10: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE R.6 ON 22/02/2011 IS PRODUCED HEREWITH ALONG WITH ITS POSTAL RECEIPT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.14058 of 2011-F ***************************** Dated this the 8th day of June, 2011 JUDGMENT BASANT, J. The petitioner has come to this Court with this petition for issue of directions under Article 226 of the Constitution of India to respondents 4 and 5 to afford police protection to the petitioner against any illegal obstruction by respondents 1 to 3 to enable him to put up a fencing between his property and the property of one James Mathew, who has not been arrayed as a party in this proceedings. 2. The precise dispute can be explained with reference to Ext.P2 sketch produced by the petitioner. According to the petitioner, there is no dispute between him and the said James Mathew about the right of the petitioner to construct a compound wall along line AB in Ext.P2. It is respondents 1 to 3 - father and 2 sons, who are raising untenable objections about the construction of the said boundary. 3. The petitioner concedes that one John (whose property is shown in Ext.P2) had staked a right of easement of WPC No.14058 of 2011 2 way to go to the river purampoke on the east. He had filed a suit in which the predecessors in interest of the petitioner were arrayed as defendants along with the 1st respondent herein. In that suit, it is submitted that, a right of way was claimed from the road on the north to the river purampoke along line AB, where the petitioner now wants to put up a boundary. The said suit was dismissed. 4. According to the petitioner, in the light of dismissal of that suit filed by the plaintiff with the first respondent herein on the array of parties, the first respondent cannot now assert any right of way and consequently he cannot obstruct the construction of the compound wall along AB line by the petitioner. It is in these circumstances that the petitioner has come to this Court seeking issue of directions. 5. Respondents 1 to 3 contend that members of the public including respondents 1 to 3 have a right of way from the Bhoodanon-Vellilamad road on the west to the river on the east along a pathway which is indicated in Ext.P2. According to respondents 1 to 3, only the petitioner is raising objections to the use of the pathway and the petitioner by filing this petition has attempted to side track the issue and describe the issue to be one merely of putting up a fencing along AB. WPC No.14058 of 2011 3 6. Respondents 1 to 3 have various contentions to raise. According to them, not only the respondents, but also members of the public have also a right of way from Bhoodanon-Vellilamad to the river on the east including AB. 7. It is contended that the petitioner is attempting to steal a march over all the members of the public who claim a right of way to the river by mis-describing the dispute as one relating to construction of a fence to separate the petitioner's property from James Mathew's property. The petitioner may not be permitted to arm himself with such an order on the basis of what is described as a collusive suit filed by the said John i.e. Ext.P3 judgment. It is contended that not even John Mathew has been arrayed as a party. It is further contended that on a proper measurement of the petitioner's property, it will be evident that there is a pathway outside his property and that that is the way over which there is a right of way for the members of the public. 8. We turned to the learned Government Pleader for submissions. The learned Government Pleader only submits that there is a civil dispute about the existence of the pathway and the parties will have to sort out that issue. Appropriate orders may be passed, submits the learned Government Pleader. 9. We have taken into consideration all the relevant inputs. WPC No.14058 of 2011 4 The real question is about the existence of a pathway along the line AB and the dispute is not merely about putting up a fence to separate the property of James Mathew from the petitioner's property along the line AB. We do not intend to express any opinion on merits about the disputes raised about the existence of the pathway. Suffice it to say that we are of the opinion that if the petitioner faces any obstruction to the construction of a fence to separate his property from the property of James Mathew, it is up to him to seek appropriate relief from the civil court by arraying necessary parties. In this petition for police protection, we cannot resolve that dispute. As evidently, the said dispute cannot be resolved by the police also. Leaving the parties to seek their relief from the civil court, we are satisfied that this petition can be dismissed. 10. In the result, this petition is dismissed with the above observations. SD/- R.BASANT JUDGE SD/- K.SURENDRA MOHAN JUDGE css/ TRUE COPY p.s.to judge