IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 WP(C).No. 14860 of 2010(F) -------------------------- PETITIONER: --------------- THOMAS XAVIER, THANDAMPARAMBIL, PADAHARAM MURI, THAKAZHI VILLAGE, KUTTANAD, ALAPPUZHA. BY ADV. SRI.VIJAI MATHEWS RESPONDENTS: --------------- 1. SUPERINTENDENT OF POLICE, ALAPPUZHA. 2. CIRCLE INSPECTOR OF POLICE, AMBALAPPUZHA, ALAPPUZHA. 3. SUB INSPECTOR OF POLICE, AMBALAPPUZHA, ALAPPUZHA. 4. UNNIKRISHNA PILLAI, KRISHNALAYAM, PADAHARAM MURI, THAKAZHI VILLAGE. 5. RATNAMMA, W/O.UNNIKRISHNA PILLAI, KRISHNALAYAM, PADAHARAM MURI, THAKAZHI VILLAGE. 6. SASI, S/O.NARAYANAN, THANDAMPARAMBIL HOUSE, PADAHARAM MURI, THAKAZHI VILLAGE. 7. SATHI, W/O.SASI, THANDAMPARAMBIL HOUSE, PADAHARAM MURI, THAKAZHI VILLAGE. 8. SREEKUMAR, S/O.NARAYANAN, THACHAMPALLI HOUSE, PADAHARAM MURI, THAKAZHI VILLAGE. 9. MOHAN DAS, "MAHESH BHAVAN", PADAHARAM MURI, THAKAZHI VILLAGE. 10. PRASANTH, S/O.UNNIKRISHNA PILLAI, KRISHNALAYAM, PADAHARAM MURI, THAKAZHI VILLAGE. 11. PONNU, D/O.CHINNAMMA, RESIDING AT KASTHURBHA COLONY, THAKAZHI MURI, THAKAZHI VILLAGE. 12. SUJATHA, D/O.CHINNAMMA, NALUPARAYIL HOUSE, THAKAZHI MURI, THAKAZHI VILLAGE. 13. KRISHNANKUTTY, RESIDING AT NALUPARAYIL HOUSE, THAKAZHI MURI, THAKAZHI VILLAGE. 14. ITTIATHI NARAYANAN, RESIDING AT KASTHURBHA COLONY, THAKAZHI MURI, THAKAZHI VILLAGE. 15. SANTHOSH KUNHAN, SNEHALAYATHIL, THAKAZHI MURI, THAKAZHI VILLAGE. 16. SETHU, SNEHALAYATHIL, THAKAZHI MURI, THAKAZHI VILLAGE. R1 TO R3 BY GOVT. PLEADLER SRI T.K. VIPINDAS ADV. SRI.S.SANAL KUMAR FOR R4-7,9-14,16 SMT.BHAVANA VELAYUDHAN FOR R4-7,9-14,16 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)NO. 14860/2010 APPENDIX: PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE JUDGMENT DATED 9/2/2007 IN O.S. NO. 233/2005 OF THE PRINCIPL MUNSIFF COURT, ALAPPUZHA. EXT.P1(A): TRUE COPY OF THE DECREE DATED 9/2/2007 IN O.S. NO.233/2005 OF THE PRINCIPAL MUSNIFF COURT, ALAPPUZHA. EXT.P2: TRUE COPY OF THE JUDGMENT DATED 21/7/2006 IN O.S.NO.688/2005 OF THE ADITIONAL MUSNIFF COURT, ALAPPUZHA. EXT.P2(A): TRUE COPY OF THE DECREE 21/7/2006 IN O.S. NO. 688/2005 OF THE ADITIONAL MUNSIFF COURT, ALAPPUZHA. EXT.P3: TRUE COOPY OF THE ORDER DATED 11/7/2006 IN I.A.NO.1381/2005 IN O.S.NO.MUNSIFF COURT, ALAPPUZHA. EXT.P4: TRUE COPY FO THE REPORT AND MAHAZAR OF E XECUTION DATED 27/2/2008. EXT.P5: TRUE COPY OF THE MAHAZAR AND COMMISSION REPORT DATD 26/3/2008. EXT.P6: TRUE COPY O THE RODER DATED 10/3/2010 IN E.A.NO.434/2009 OF THE ADDL.MUNSIFF COURT, ALAPPUZHA. EXT.P7: TRUE COPY OF THE REPORT, MAHAZAR AND the PLAN DATED 30/1/2010. EXT.P8: TRUE COPY FO THE PROSECUTION PETITION DATED 19/2/2010. EXT.P9: TRUE COPY OF THE COMPLAINT DATED 8/2/2010 FILED B Y THE PETITIONER EBFORE THE SUPERINTENDENT OF POLICE, AMBALAPPUZHA. EXT.P9(a): true copy OF THE COMCPLAINT DATED D8/2/2010 FILED BY THE PETITIONER BEFORE THE CIRCLE INSPECTOR OF POLICE, AMBALAPPUZHA. EXT.P9(B): TRUE COPY OF THE COMPLAINT DATED 8/2/2010 FILED BY THE PETITIONER BEFOR THE SUB INSPECTOR OF POLICE, AMBALAPPUZHA. EXT.P-10: TRUE COPY OF O.P.TICKET DATED 23/5/2010. EXT.P10(a): TRUE COPY OF THE O.P.TICKET DATED 17/6/2010. EXT.P11: TRUE COPY FO THE COMPLAINT FILED BY THE PETITINOER BEFRORE THE 1ST RESPONDENT ON 2/6/2010. EXT.P12; TRUE COPY OF THE O.P. TICKET NO. 56191 DATED 27/6/2010 ISSUED FROM T.D. MEDICAL COLELGE HOSPITAL ALAPPUZHA. EXT.P13: TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 1ST RESPONDENT ON 28/6/2010. RESPONDENTS' EXTS: NIL KS. TRUE COPY P.S. TO JUDGE K.M.JOSEPH & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 14860 OF 2010 ============================ Dated this the 23rd day of September 2010 JUDGMENT K.M. Joseph, J. The petitioner has approached this Court seeking the following reliefs: “a)issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 1 to 3 to give adequate and sufficient police protection to the life of the petitioner and his family members for the proper enjoyment of the property and the decree and judgment in O.S.No.233/2005 without any obstruction or interference by respondents 4 to 14 and their men or anybody claiming under them. b)issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 1 to 3 to ensure that respondents 4 to 14 or any other person claiming under them are not encroaching the W.P.(C)NO.14860/2010 -2- property of the petitioner covered by decree and judgment in O.S.No.233/2005 and are not making any sort of trouble.” 2. Briefly put, the case of the petitioner is as follows: The petitioner is the decree holder in O.S.No.233/2005 of the Principal Munsiff Court, Alappuzha and in O.S.No.688/2005 of the Additional Munsiff's Court, Alappuzha. Ext.P1 is the judgment in O.S.No.233/2005 and Ext.P1(a) is the decree in O.S.No.233/2005. Ext.P2 is the judgment and Ext.P2(a) is the decree in O.S.No.688/2005. The petitioner filed I.A.No.1381/2005 in O.S.No.233/2005 to restore the suit property being damaged by the defendants to its original position as on the date of the suit and the Munsiff Court was pleased to order restoration of the property vide Ext.P3 order. The petitioner and other plaintiffs filed E.P.No.290/2007 in O.S.No.233/2005 for executing the decree and the same was executed with the help of the court and the report and mahazar of execution is produced as Ext.P4. It is stated in Ext.P4 that the plaint schedule property was encroached by the judgment debtors and the property was handed over to the petitioner after W.P.(C)NO.14860/2010 -3- executing the decree. Even though the decree was executed, the respondents were continuingly obstructing the enjoyment of the property and they are attempting to destroy the fence put up by the petitioner. An Advocate Commissioner was appointed by the court and Ext.P5 is the report of the Advocate Commissioner. The petitioner filed E.A.No.434/2009 seeking permission to construct a fence. The Execution Court passed Ext.P6 order in E.A.No.434/2009. Finally, the Execution Court allowed execution petition and the Advocate Commissioner filed Ext.P7 report along with the mahazar and plan (O.S.No.233/2005). Even after the construction of fence, the respondents (judgment debtors) have violated the judgment and decree. Thereupon, the petitioner filed Ext.P8 prosecution petition and it is pending. The petitioner has filed a complaint before the Sub Inspector of Police and copy of the complaints are produced as Ext.P9 series. 3. Counter affidavit has been filed by respondents 4 to 7, 9 to 14 and 16 wherein inter alia would state that in the guise of the decree in O.S.No.233/2005, the petitioner tried to grab the W.P.(C)NO.14860/2010 -4- property of the defendants therein and also his neighbours. There is no obstruction to the enjoyment of the property which the petitioner has acquired. Though the suit as O.S.No.233/2005 was filed by the petitioner and others for prohibitory injunction against cutting open a pathway over his property, he conveniently made it a decree for fixation of boundary and he put up a fence by encroaching into the property of others. The other allegations are also denied. 4. The petitioner has filed a reply affidavit denying the allegations. 5. We heard the learned counsel for the petitioner and the learned counsel for respondents 4 to 7, 9 to 14 and 16. 6. The learned counsel for the petitioner would submit that Ext.P1 judgment and Ext.P1(a) decree have become final and the party respondents are violating the same. The learned counsel for the party respondents submits that they have not dis-obeyed the decree and they have no intention to violate the decree. 7. The petitioner is actually the 4th plaintiff in O.S.No.233/2005. There are other plaintiffs. We are actually W.P.(C)NO.14860/2010 -5- concerned with Ext.P2 judgment and Ext.P2(a)decree. The petitioner has already filed Ext.P8. Even according to his version, it is pending before the civil court. The petitioner has obtained prohibitory injunction and it cannot be said that the petitioner cannot go to the execution court seeking relief on the basis of the decree. 8. We record the submission of the learned counsel for the party respondents that they have no intention to violate the decree. The learned counsel for the party respondents would also submit that they have no intention to cause any threat to the life of the petitioner. We further direct that in case, there is any threat to the life of the petitioner by any of the party respondents, the petitioner can bring the same to the notice of the 2nd/3rd respondent and the official respondents before whom such a complaint is filed shall look into it and if it is found to be genuine, protection to the life of the petitioner shall be granted as against the party respondents. As far as the property rights are concerned, we leave it open to the petitioner to approach the civil court and seek appropriate orders from the civil court. W.P.(C)NO.14860/2010 -6- When the matter comes up before the civil court, the civil court shall decide the matter untrammelled by anything contained in this judgment. The writ petition is disposed of as above. K.M. JOSEPH, JUDGE M.C. HARI RANI,JUDGE ks.