IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 WP(C).No. 12997 of 2009(T) -------------------------- PETITIONER(S): --------------------- 1. K.SAVITHRI, AGED 62, D/O.RAMAN NAMBIAR, MYLOTH HOUSE, VELOM, NOW RESIDING AT HOUSE NO.13/344D, K.T.V.APARTMENTS, POORATHARA ROAD, PAVANGAD, KOZHIKODE DISTRICT. 2. M.V.MADHAVI AMMA, AGED 68, D/O.RAMAN NAMBIAR, MEETHALE VEETIL, CHERAPURAM, VATAKARA TALUK, KOZHIKODE DISTRICT. 3. M.V.RAJEEVAN, AGED 48, S/O.NARAYANAN NAMBIAR, MEETHALE VEETIL, CHERAPURAM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.A.RANJITH NARAYANAN RESPONDENT(S): ----------------------- 1. STATE REPRESENTED BY SUB INSPECTOR OF POLICE, KITTIADI POLICE STATION, KOZHIKODE DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUPERINTENDENT OF POLICE, KOZHIKODE RURAL, VATAKARA. 3. O.GOPALAKURUP, AGED 70, S/O.RAMAN NAMBIAR, KUZHICHALIL HOUSE, CHERAPURAM, VATAKARA TALUK, KOZHIKODE DISTRICT. 4. VENU, AGED 40, S/O. O. GOPALAKURUP, KUZHICHALIL HOUSE, CHERAPURAM, VATTAKARA TALUK, KOZHIKODE DISTRICT. BY GOVT. PLEADER SRI. P.A. SALIM. ADV. SRI.JESWIN P.VARGHESE FOR R3 & 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC. 12997/2009. APPENDIX PETITIONER'S EXTS: EXT. P1 : TRUE COPY OF THE JUDGMENT AND ORDER IN F.D.I.A. NO.1570/2005 IN O.S. 63/1994 DATED 4/11/2006. EXT. P2 : TRUE COPY OF THE JUDGMENT IN RFA 142/2008 DATED 6.11.2008. EXT. P3 : TRUE COPY OF THE DELIVERY ORDER/REPORT DATED 12.3.2009 IN RESPECT OF 1ST PETITIONER. EXT. P4 : TRUE COPY OF THE DELIVERY ORDER/REPORT DATED 12/3/2009 IN RESPECT OF THE 2ND PETITIONER'. EXT. P5 : TRUE COPY OF THE DELIVER ORDER/REPORT DATED 12.3.2009 IN RESPECT OF 3RD PETITIONER. EXT. P6 : A TRUE COPY OF THE C1 PLAN. EXT. P7 : A TRUE COPY OF THE PETITION DATED 18.4.2009. RESPONDENTS'S EXTS: EXT. R4(a) : TRUE COPY OF THE REPORT OF AMEEN DT. 3.3.2009. EXT. R4(b) : TRUE COPY OF THE PLAINT IN O.S. 68/09 ON THE FILE OF THE SUB COURT, KOYILANDI DT. 8.4.2009. EXT. R4(c) : TRUE COPY OF THE PLAINT IN O.S. NO.69/09 ON THE FILE OF THE SUB COURT, KOYILANDI DT. 22.5.2009. P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 12997 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2009. JUDGMENT Raman, J, Petitioners seek police protection against none other than their brother. Contention is that as per the final decree passed in the partition deed petitioners have taken delivery of the property allotted to their share and the Amin delivered the property as evidenced by Exts.P3, P4 and P5. But they are prevented from enjoying the property to the fullest extent by the obstruction caused by respondents 3 and 4. Despite complaint made to the police, they are not affording any protection. 2. The third respondent filed a detailed counter affidavit. It is contended that delivery was effected in the partition suit, the dispute now centers around a different property, which is in the possession of the third respondent. Under the guise of taking delivery, an attempt is made by the petitioners herein to trespass into that property. 3. But we have to take note of the fact that parties were appearing all through at every stage and finally appeal filed by the third WPC.12997/2009. 2 respondent was dismissed by this court as evidenced by Ext.P2 judgment on 6.11.2008 and it is seen thereafter that the third respondent has filed a suit O.S. 68 of 2009 before the Sub Court, Koyilandy. Though an interim injunction was sought against the petitioners herein alleging that they are trespassing into the property, no orders have been obtained by the third respondent yet. 4. We would have perhaps granted police protection based on the delivery effected by the Amin. But in the wake of the contention raised by the parties, we cannot possibly take a view that the disputed property is one forming part of the share of the petitioners and in respect of which delivery has been effected. At the same time, if the petitioners have taken delivery of the property including the disputed property in question, then, the party to the litigation cannot be allowed to take advantage of his possession to deprive the decree holder from enjoying the property. However in the present situation, the best course open is to direct the Sub Court, Koyilandy to dispose of the interim injunction application after entering a finding regarding prima facie possession. Since the petitioners have approached this court seeking police protection, which, in the factual situation, we are not inclined to grant, for the reasons already stated above, we give them an opportunity to move that court for an early hearing of that WPC.12997/2009. 3 I.A., whereupon the court will consider the I.A. and dispose of the same as expeditiously as possible, at any rate within a period of one month from the date of production of a copy of this judgment. If the order passed by the civil court is in favour of the petitioners, they may approach the police for necessary help and thereupon the police will render necessary assistance. The writ petition is disposed of as above. P.R. Raman, Judge P. Bhavadasan, Judge sb.