IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WP(C).No. 22878 of 2008(W) -------------------------- PETITIONER: ------------ ABUBACKER KUNJU MUHAMMADALI PUTHEN VEEDU, CHIRAYINKEZHU CHIRAYINKEZHU P.O, THIRUVANANTHAPURAM BY ADV. SRI.D.SAJEEV RESPONDENTS: ------------- 1. SUPERINTENDENT OF POLICE (RURAL) O/O.THE SUPERINTENDENT OF POLICE (RURAL) KURAVANKONAM, TRIVANDRUM 2. C.I. OF POLICE, VENJARANMOODU THIRUVANANTHAPURAM. 3. S.I. OF POLICE, VENJARAMODU, THIRUVANANTHAPURAM. 4. ISMAIL PILLAI, MSH HOUSE MERUVADI MURI, THEKKADA VILLAGE KANYAKULANGARA ,NEDUMANGAD. 5. SALIM MOHAMMED MANZIL, OZHIVUPARA, KUTHIRAKULAM PO., NEDUMANGAD. BY ADV. SRI.V.G.ARUN FOR R4 & 5 SRI.T.R.HARIKUMAR FOR R4 & 5 GOVERNMENT PLEADER, SRI.BENJAMIN PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.22878/2008 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY of the DELIVERY KYCHIT EXECUTED BY THE AMEEN APPOINTED BY THE COURT. EXT.P2: COPY OF THE JUDGMENT DATED 18.8.2005 IN C.R.P.NO.847/2005. EXT.P3: COPY OF THE JUDGMENT DATED 20.10.2005 IN W.P.(C) NO.25166/2005 OF THIS HON'BLE COURT. EXT.P4: COPY OF THE ORDER NO.4797/2008 DATED 26.2.2008 OF THE VILLAGE OFFICER, MANICKAL WHICH SHOWS THE CHANGING OF PATTA UNDER THE TRANSFER OF REGISTRY RULES. EXT.P5: COPY OF THE RECEIPT WHICH SHOWS THE CHANGE OF MUTATION IN THE NAME OF THE PETITIONER DATED 16.4.2008. EXT.P6: COPY OF THE JUDGMENT DATED 20.6.2008 INO.S.NO.252/2008 ON THE FILE OF THE ADDITIONAL MUNSIFF COURT, NEDUMANGAD. EXT.P7: COPY OF THE COMPLAINT DATED 5.7.2008 FILED BEFORE THE 3RD RESPONDENT. RESPONDENT'S EXTS: EXT.R4(a): COPY OF THE SALE DEE NO.2550/1993 DATED 26.10.1993. EXT.R4(b): COPY OF THE PETITION E.A.NO.1157/2005 IN O.S.NO.134/1957 DATED 5.9.2005. EXT.R4(c): COPY OF THE JUDGMENT IN W.P.(C) NO.4407/2008 DATED6.2.2008. EXT.R4(d): COPY OF THE AFFIDAVIT AND PETITION DATED 18.9.2007. //TRUE COPY// PA TO JUDGE. K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ------------------------------------- W.P.(C) No.22878 OF 2008 -------------------------------------- Dated this the 11th day of August, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioner is in possession of 5.65 cents of land in Survey No.188/2-3 of Manickal village . The said property was delivered by the civil court by Ext.P1 execution proceedings. The challenge against the said delivery was repelled by this Court by Ext.P2 order in CRP.No.847/2000. Later, one Mr.Hashim tried to trespass into the property. The petitioner moved this Court for police protection. The said writ petition was disposed of by Ext.P3 directing that final orders of the civil court shall not be violated and the police is bound to see that civil court orders are respected. 2. While so, the respondents 4 and 5 herein trespassed into the property and the 5th respondent has erected a shed there. Thereafter, the 4th respondent moved the civil court and obtained an order of interim injunction against him. The petitioner appeared and filed his objection. Thereupon, the 4th W.P.(C) No.22878/2008 2 respondent withdrew that suit and Ext.P6 is the judgment in that suit. Even thereafter, the 5th respondent continued the unauthorised occupation of the property. Therefore, he filed Ext.P7 petition before the Sub Inspector of police praying that the said person may be removed from that property. 3. The respondents 4 and 5 have filed a counter affidavit. The 4th respondent claims, he purchased 4 cents of land adjacent to the petitioner's property from one of the legal heirs of the defendants in the suit, viz., late Ismail Pillai, as per Ext.R4(a) deed. The said Ismail Pillai died even before the passing of the final decree. His legal heirs were not parties to further proceedings in that suit. The 4th respondent claims title and possession over the said 4 cents of property. It is further submitted that while delivering the property to the petitioner as per Ext.P1 one cent covered by Ext.R4(a) was also wrongly delivered. Though the 4th respondent initially filed a suit, later it was withdrawn and he moved the Execution court for redelivery of one cent of that property covered by Ext.P1. The 4th respondent submits that he was always in possession of that one cent and the 5th respondent is the person who is conducting business in the said one cent of W.P.(C) No.22878/2008 3 property of the 4th respondent. In the execution application filed by him, the 4th respondent moved for appointment of an Advocate Commissioner to identify the property claimed by him. The learned Munsiff allowed the said application. The said order was challenged by the writ petitioner before this Court by filing W.P. (C)No.4407/2008. The said writ petition was allowed, setting aside the order of the Munsiff, on the ground that it is a non speaking order, without adverting to the objections filed by the writ petitioner. Now the matter is being reconsidered by the learned Munsiff in the said execution proceedings. The 4th respondent claims he has got a genuine dispute regarding the one cent of property delivered. It is in his possession and the 5th respondent is doing business there. 4. We heard the learned counsel on both sides. The learned counsel for the petitioner submitted that the dispute raised by the petitioner regarding one cent of property is plainly untenable and the police is bound to render necessary protection to retain his possession over the entire property covered by Ext.P1. W.P.(C) No.22878/2008 4 5. The learned counsel for the respondents 4 and 5 submitted that this is a civil dispute in which the police should not interfere. The learned Government Pleader also submitted that this being a civil dispute, pending before the sub court, which was posted to 8.8.2008, the police did not interfere in that matter. 6. If somebody is trespassing and committing waste in the petitioner's property and the said person has no semblance of right or interest over the same, the same will amount to criminal trespass and commission of mischief. Causing obstruction to the petitioner will amount to the offence of wrongful restraint also. So, the police have a duty to interfere in the matter. But, in this case, the 4th respondent has raised a claim over one cent of property covered by Ext.P1. Whether it is genuine or not is not a matter which this Court cannot decide in this jurisdiction. Nor the police is authorised to go into that matter and render a decision. Therefore, we feel that the police cannot be asked to help the petitioner to evict the respondents 4 and 5 from the disputed one cent of property. The petitioner has to seek the assistance from the civil court. The civil court, if found necessary, can address the police to enforce its orders. In that event, the police can act. The W.P.(C) No.22878/2008 5 police cannot be conceded power or authority to suo motu decide this dispute and interfere in the matter according to their decision. In the result, this writ petition fails and it is dismissed, without prejudice to the contentions of the petitioner and his right to move the civil court for appropriate reliefs. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps