IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 WP(C).No. 27540 of 2008(C) -------------------------- PETITIONERS: --------------- 1. K.P.MERSA, RESIDING AT PALLICKACHUVATTIL VEEDU, KOLLAYIL(P.O), MADATHARA, KOLLAM. 2. A.S.VAHEEDA, W/O.K.P.MERSA, RESIDING AT PALLICKACHUVATTIL VEEDU, KOLLAYIL(P.O), MADATHARA, KOLLAM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.RAJAN VELLOTH SRI.SAIJO HASSAN SRI.A.S.SABU RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE SUPERINTENDENT OF POLICE, KOLLAM. 3. THE DEPUTY SUPERINTENDENT OF POLICE, PUNALUR. 4. THE CIRCLE INSPECTOR OF POLICE, KADACKAL POLICE STATION, KADACKAL. 5. THE SUB INSPECTOR OF POLICE, KADACKAL POLICE STATION, KADACKAL. 6. SRI.P.R.PICHA MOHAMMED RAWTHER, HOUSE NO.,898, FIRDHOUSE, AMBADIMUKKU, PULIPPARA (P.O), PANGALUKADU, KADAKKAL, KOLLAM DISTRICT. 7. LAREEFA BEEVI, HOUSE NO.898, FIRDHOUSE, AMBADIMUKKU, PULIPPARA(P.O), PANGALUKADU, KADAKKAL, KOLLAM DISTRICT. BY SR.GOVT.PLEADER SHRI BENJAMIN PAUL FOR R1 TO R5 ADV. SRI.N.RAGHURAJ & SMT.K.AMMINIKUTTY FOR R6 &R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.27540/08 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE JUDGMENT PASSED BY THIS COURT IN W.P.(C) No.24773/08 DATED 21.8.08. EXT.P2: TRUE COPY OF THE PETITION FILED BY THE 1ST PETITIONER DATED 22.8.08. EXT.P3: TRUE COPY OF THE REPRESENTATION FILED BY THE 1ST PETITIONER DATED 13.9.08. RESPONDENTS' EXTS: EXT.R6(a): TRUE COPY OF THE SETTLEMENT DEED NO.1473/03 DATED 19.7.03 OF SRO, CHITHARA. EXT.R6(b): TRUE COPY OF TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, CHITHARA ON 27.5.08. EXT.R6(c): TRUE COPY OF THE RELEVANT PAGES OF THE RATION CARD ISSUED TO THE 6TH RESPONDENT. EXT.R6(d): TRUE COPY OF THE IDENTITY CARD ISSUED BY THE ELECTION COMMISSION OF INDIA TO THE RESPONDENT ON 29.3.06. EXT.R6(e): TRUE COPY OF THE TELEPHONE BILL ISSUED TO THE 6TH RESPONDENT BY THE BSNL AUTHORITIES FOR THE MONTH OF AUGUST, 2008. TRUE COPY K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- W.P.(C)No.27540 OF 2008 ----------------------------------------------------- DATED THIS THE 25th DAY OF SEPTEMBER, 2008 J U D G M E N T Balakrishnan Nair, J. The petitioners are husband and wife. They claim absolute possession and enjoyment over 1.76 acres of land in Survey No.169/7 of Chithara Village, Kottarakara Taluk. The first petitioner got absolute possession and ownership over the property as per settlement deed No.1473/2003 of S.R.O., Chithara. 6th respondent is the father of the first petitioner. He married the 7th respondent in the year 2003, while his first marriage with the mother of the first petitioner was subsisting. The first petitioner's mother died on 24.7.2007. After the death of his mother, respondents 6 and 7 tried to trespass into the property and the residential building of the petitioner. While so, respondents 6 ad 7 approached this Court by filing W.P.(C)No.24773/08 alleging that the petitioners are threatening and harassing them. This Court disposed of the said Writ Petition by Exhibit P1 judgment, which reads as follows: “According to the first petitioner, he married the second petitioner after W.P.(C)No.27540/08 -2- the death of his first wife. The children born to him in the first wife are threatening and their life is in danger. Hence they want police protection. Learned Government Pleader on instructions submitted that at present there is no threat to the life of the petitioners and it is only their apprehension. We are not deciding the question of civil rights between the parties in this Writ Petition. However, police is directed to see that law and order is maintained and the lives of the parties are not endangered and take appropriate action when complaints are received. Writ Petition is disposed of as above.” The petitioners submit, after the judgment, respondents 6 and 7 have influenced respondents 4 and 5 who are the Circle Inspector and Sub Inspector of Police. On the strength of Exhibit P1 judgment, the said Police Officers are trying to put respondents 6 and 7 in the residential building of the petitioners. When those respondents on their own tried to trespass into the property, it was resisted by the petitioners with the support of the local people. Now, the petitioners are being unnecessarily called to the Police Station and they are being harassed W.P.(C)No.27540/08 -3- and threatened for not allowing respondents 6 and 7 to enter and reside in the property. So, the first petitioner filed Exhibit P3 petition before the Dy.S.P., Punalur pointing out the highhanded actions of the local Circle Inspector and Sub Inspector of Police. Thereafter, this Writ Petition is filed, seeking appropriate reliefs. 2. Respondents 6 and 7 have filed a counter affidavit stating that the property and the building in the possession of the first petitioner has been settled in his favour, by the 6th respondent. Copy of the said settlement is Exhibit R6(a). The said deed reserves the right of the 6th respondent to reside there and also to take usufructs till his death. Suppressing that fact, this Writ Petition is filed, it is submitted. The petitioner and his wife were residing in the ancestral home which was settled in favour of the first petitioner as per Exhibit R6(a). Because of the physical harassment from the part of the petitioners, they were constrained to shift to a nearby outhouse in the very same compound. They are not allowed to reside there freely. When they go out, their doors are locked using different locks and they are being harassed. In the above background, they filed a petition before the police. 3. The learned Government Pleader upon instructions W.P.(C)No.27540/08 -4- submitted that on receipt of a complaint from the 6th respondent, both sides were called to the police station. But the petitioner failed to appear. 4. The petitioner has filed a reply affidavit denying the averments in the counter affidavit. It is also submitted that the first petitioner has already filed a civil suit before the competent civil court. 5. As evident from Exhibit P1, this Court has ordered to protect the lives of both sides. But, the protection cannot be used to disturb the status quo regarding the possession of any property, because this Court has specifically clarified that this Court is not deciding anything regarding the civil dispute between the parties. But, whether the petitioners alone were residing in the property covered by Exhibit R6 (a) or respondents 6 and 7 were also residing there, is a disputed question which cannot be decided in this Writ Petition. The remedy of the petitioners is to move the civil court and seek appropriate injunction orders against respondents 6 and 7 or at least against the 7th respondent. In that event, the police will not violate the order of the civil court. 6. Having regard to the nature of the allegations and counter allegations, we feel that this Court cannot issue any positive direction W.P.(C)No.27540/08 -5- in favour of the petitioners. But, we will clarify that the order under Exhibit P1 cannot be used by the parties to disturb the status quo regarding the possession of any property. If one side or the other feels that the order is being abused and status quo is being disturbed, their remedy is to move the civil court and get appropriate orders. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. dsn