IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 WP(C).No. 26443 of 2010(E) -------------------------------- PETITIONER(S): ------------------ POTTINTAKATH HAMZAKOYA, S/O.KUNHIMOHAMMAD, AGED 46 YEARS, RESIDING AT POTTINTAKATH HOUSE, RAYIRAMANGALAM AMSOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON RESPONDENT(S): -------------------- 1. THE SUPERINTENDENT OF POLICE, MALAPPURAM, MALAPPURAM DISTRICT. 2. THE DEPUTY SUPERINTENDENT OF POLICE, TIRUR, MALAPPURAM DISTRICT. 3. THE CIRCLE INSPECTOR OF POLICE, TANUR, MALAPPURAM DISTRICT. 4. THE SUB INSPECTOR OF POLICE, TANUR POLICE STATION, TANUR, MALAPPURAM DISTRICT. 5. SACHIDANANDAN, S/O.PATTINTEPURACKAL UNNICHOYIKUTTY, AGED 60 YEARS, PARIYAPURAM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. ADV. SRI.C.M.MOHAMMED IQUABAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26443 of 2010(E) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE COPY OF THE SALE DEED EXECUTED BY THE 5TH RESPONDENT IN FAVOUR OF THE PETITIONER. EXT.P2:- TRUE COPIES OF REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT DATED 15/05/10 EXT.P3:- TRUE COPIES OF REPRESENTATIONS SUBMITTED BEFORE THE 4TH RESPONDENT DATED 12/03/10 EXT.P4:- A TRUE COPY OF THE PRELIMINARY DECREE PASSED IN O.S.59/94 DT.29/03/97 OF THE SUB COURT, TIRUR. EXT.P5:- A TRUE COPY OF THE SALE DEED NO.1304/05 DATED 23/04/05 EXT.P6:- A TRUE COPY OF THE SALE DEED NO.2363/05 DATED 08/07/05 BY WHICH SADANANDAN AND SAROJINI EXT.P7:- A TRUE COPY OF THE SALE DEED NO.1516/05 DATED 28/04/05. EXT.P8:- A TRUE COPY OF THE SALE DEED NO.483/06 DATED 13/02/2006. EXT.P9:- A TRUE COPY OF THE SALE DEED NO.171011/2006 DATED 17/05/06. EXT.P10:- A TRUE COPY OF THE SALE DEED NO.2816/07 DATED 06/08/07. EXT.P11:- A TRUE COPY OF THE DECREE PASSED IN I.A. NO.914/97 IN O.S.58/94 OF THE SUB COURT, TIRUR. EXT.P12:- A TRUE COPY OF THE REPORT OF THE COMMISSIONER. EXT.P13:- A TRUE COPY OF THE JOINT STATEMENT FILED BY THE COUNSEL FOR 1ST AND 2ND PETITIONERS AND 4TH RESPONDENT IN THE FINAL DECREE PROCEEDINGS DT.28/09/06. EXT.P14:- A TRUE COPY OF THE EXECUTION PETITION NO.121/08 EXT.P15:- A TRUE COPY OF THE NOTICE ISSUED FROM THE EXECUTION COURT IN EXECUTION PETITION NO.121/08 EXT.P16:- A TRUE COPY OF THE DELIVERY REPORT DATED 28/10/09 RESPONDENTS EXTS: EXT.R5(a):- THE TRUE COPY OF THE RELEVANT PAGES OF RATION CARD NO.2054017690 DT.24/12/08 //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ W. P. C. No.26443 of 2010 ------------------------------------------------ Dated this the 8th day of August, 2011 JUDGMENT Pius C. Kuriakose, J The petitioner who claims to have obtained delivery of 3.30 acres of property with building having Door No.226, Ward No.1 of Tanur Panchayat on the strength of Ext.P16 delivery report has approached this Court complaining that the 5th respondent, has subsequent to Ext.P16 trespassed into the property which was delivered over to him under Ext.P16 and has now reduced the residential building having Door No.1/226 of Tanur Panchayat situated thereon to his possession. According to the petitioner, even though complaint was submitted to the police immediately on noticing the trespass, the police has not taken any effective action. The stand taken by the police, according to the W. P. C. No.26443 of 2010 -2- submissions of Smt.C.M.Charisma, the learned Government Pleader, is that the petitioner filed a private complaint before the Judicial First Class Magistrate's Court, Parappanangadi which was forwarded to the police under Section 156(3) Cr.P.C for enquiry. On receiving the complaint, the police registered Crime No.171/10 under Section 452 and 506(2) against the 5th respondent. The above crime is under investigation. The learned Government Pleader was not in a position to inform us whether the investigation is over and whether any final report is submitted. 2. We have heard Sri.Harish R. Menon, the learned counsel for the petitioner and Smt.C.M.Mohammed Iquabal, the learned counsel for the 5th respondent in detail. According to Sri.Harish, no proceedings are presently pending before the Civil Court. The E.P. was closed in view of W. P. C. No.26443 of 2010 -3- Ext.P16 delivery. The trespass made after Ext.P16 delivery is by the 5th respondent who is a party to Ext.P16. Apart from that it is from the 5th respondent that the petitioner purchased the property. Resisting the submissions of Sri.Harish, Sri.Mohammed Iquabal would submit that it is not correct to say that the petitioner is a trespasser. The sale deed Ext.P1 does not take in building having Door No.1/226. According to him, the final decree Ext.P11 also does not take in building having Door No.1/226. The above building has always been under the possession of the 5th respondent. He was never evicted therefrom. Granting the police protection direction sought for in respect of that building will be unjust according to Sri.Iqubal. 3. We have considered the rival submissions addressed at the Bar. We have gone through the materials placed on record by both sides. It is clear to our mind that if building W. P. C. No.26443 of 2010 -4- having Door No.1/226 is covered by the final decree and by a report of delivery Ext.P16 it was rank trespass on the part of the 5th respondent to have got into that building on the strength of the ration card produced along with the additional counter affidavit. To insist that even under such a situation the petitioner should initiate fresh proceedings before the civil court will be rendering our civil justice delivery system teethless. But the question is whether Exts.P16 and P11 take in building having Door No.1/226 Tanur Panchayat also. The E.P. stands closed presently and if the petitioner moves the execution court it is likely that the court will decline jurisdiction. We feel that this is a case where the execution court has to hold an enquiry as to whether Ext.P16 delivery report took in building having Door No.1/226 of Tanur Panchayat also. We therefore, permit the petitioner to move the Sub Court, Thirur by an execution W. P. C. No.26443 of 2010 -5- application in E.P.121/08 in O.S.58/94 voicing his grievance. If such an application is filed by the petitioner within three weeks from today the execution court will invite objections to that application from the 5th respondent, hold an enquiry and come to a decision as to whether Ext.P16 delivery report pertains to building having Door No.1/226 of Tanur Panchayat also. If the finding is to the effect that the above building was also delivered over under Ext.P16, the learned Sub Judge will address the Sub Inspector of Police, Tanur immediately to render effective protection and assistance to the petitioner for enjoying the above building and the other properties covered by Ext.P16 without any hindrance or obstruction from the part of the 5th respondent. The learned Sub Judge shall expedite matters and will ensure that the enquiry pursuant to this judgment is conducted within four months. It is needless to mention that for entertaining the W. P. C. No.26443 of 2010 -6- E.A. pursuant to the judgment, the learned Sub Judge will be obliged to re-open the E.P. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-