IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 WP(C).No. 14195 of 2010(Y) --------------------------------------------- PETITIONER(S): -------------------- BEEVI AMMAL,EETTIMUTTIL VEEDU,PETTA, VETTIPURAM, PATHANAMTHITTA. BY ADV. SRI.B.S.SWATHY KUMAR SMT.P.A.ANITHA RESPONDENT(S): ------------------------- 1. THE CIRCLE INSPECTOR OF POLICE, PATHANAMTHITTA. 2. FIROZE KHAN, ETTIMUTTIL VEEDU, PETTA, VETTIPURAM,PATHANAMTHITTA. 3. NIGILA FIROZE,W/O.FIROZE KHAN, EETTIMUTTIL VEEDU, PETTA,VETTIPURAM, PATHANAMTHITTA. BY GOVERNMENT PLEADER SHRI T.K. VIPINDAS. ADV. SRI.M.T.SURESHKUMAR FOR R2 & R3 SRI.R.RANJITH FOR R2 & R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C).NO.14195 OF 2010 Y PETITIONER'S EXHIBITS: EXT.P1TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE DEPUTY SUPERINTENDENT OF POLICE, PATHANAMTHITTA DATED 19.3.2010. EXT.P2TRUE COPY OF THE ACKNOWLEDGMENT NO.283/DPN/PTA/10 DATED 19.3.2010 ISSUED BY THE FIRST RESPONDENT. EXT.P3TRUE COPY OF THE WRITTEN STATEMENT IN OS.NO.547/2005 DATED NIL. EXT.P4TRUE COPY OF THE F.I.R. IN CRIME NO.779/2010 DATED 7.6.2010 OF THE PATHANAMTHITTA POLICE STATION. EXT.P5TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE SUPERINTENDENT OF POLICE, PATHANAMTHITTA DATED 15.6.2010. EXT.P6TRUE COPY OF THE LETTER NO.G1-9228/07(32/07) DATED 28.9.2007. EXT.P7TRUE COPY OF THE LETTER NO.R1-114/2010 DATED 20.2.2010 OF THE MUNICIPAL SECRETARY, PATHANAMTHITTA. EXT.P8TRUE COPY OF THE LETTER NO.PGR-170071/2010 DATED 5.5.2010 OF THE DISTRICT COLLECTOR, PATHANAMTHITTA. EXT.P9TRUE COPY OF THE LETTER NO.C.S5-3183/2006 DATED 19.5.2010 OF THE TALUK SUPPLY OFFICER, KOZHENCHERRY. EXT.P10 TRUE COPY OF THE NEWS ITEM REPORTED IN MANGLAM DAILY DATED 8.5.2010. EXT.P11 TRUE COPY OF THE COMPLAINT FILED BY THE MUNICIPAL SECRETARY TO THE STATION HOUSE OFFICER, PATHANAMTHITTA DATED 7.5.2010. EXT.P12 TRUE COPY OF THE F.I.R. IN CRIME NO.638/2010 DATED 7.5.2010 OF THE PATHANAMTHITTA POLICE STATION. EXT.P13 TRUE COPY OF THE DEED NO.368/1994 DATED 29.1.1994. EXT.P14 TRUE COPY OF THE TAX RECEIPT NO.6038499 FOR THE YEAR 2010 DATED 22.4.2010. EXT.P15 TRUE COPY OF THE PLAINT IN O.S.NO.547/2005 OF THE MUNSIFF COURT, PATHANAMTHITTA DATED 9.12.2005. EXT.P16 TRUE COPY OF THE ORDER IN IA.NO.2405/2005 IN OS.NO.547/2005 DATED 12.12.2005 OF THE MUNSIFF COURT, PATHANAMTHITTA. EXT.P17 TRUE COPY OF THE RELEVANT PAGE OF THE RATION CARD NO.1312088887 OF THE PETITIONER. EXT.P18 TRUE COPY OF THE RELEVANT PAGE OF THE RATION CARD NO.1315039783 OF THE 2ND RESPONDENT. W.P.(C).NO.14195 OF 2010 Y EXT.P19 TRUE COPY OF THE COMMUNICATION NO.PGR CELL 3451/2010 DATED 19.6.2010 OF THE DISTRICT COLLECTOR, PATHANAMTHITTA. RESPONDENTS' EXHIBITS: NIL. // True Copy // PS to Judge K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. -------------------------------------------------- W.P.(C). NO. 14195 OF 2010 Y --------------------------------------------------- Dated this the 5th July, 2010 JUDGMENT K.M. Joseph, J. Petitioner has approached this Court seeking the following relief: “1) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to afford adequate police protection to the life of the petitioner enabling her to reside peacefully in her residence bearing House No.9/116 from the illegal threat, abuse and assault from respondents 2, 3 and their henchmen;” 2. Briefly put, the case of the petitioner is as follows: Petitioner is an aged lady. She is suffering from cancer. Second respondent is her nephew and the third respondent is his wife. Petitioner is residing in the middle portion of a building on the immediate southern side of the building. (On the southern side of the building, respondents 2 and 3 reside, WPC.14195/2010 Y 2 submits the learned counsel for the petitioner). The said buildings are family properties which have been partitioned. Second respondent along with his henchmen are creating nuisance to the petitioner in order to oust the petitioner from that portion of the building and the third respondent also started threatening and abusing the petitioner. Petitioner filed a Suit for partition and fixing up of boundaries as OS.No.547/2005 against respondents 2 and 3 and another, wherein an interim order of injunction was passed on 12.5.2005. It is stated that the Suit is pending. The second respondent managed to get a ration card in his name showing the petitioner's address by making false representations and producing false documents. Petitioner complained before the Vigilance. The enmity increased and the respondents 2 and 3 used some goondas. There is allegation of trespass by respondents 2 and 3. Petitioner filed Ext.P1 petition addressed to the Deputy Superintendent of Police and that was given to the first respondent for which an acknowledgment card WPC.14195/2010 Y 3 is given. Eliciting no response, this Writ Petition is filed. 3. A Counter Affidavit is filed by respondents 2 and 3. Therein, it is, inter alia, stated as follows: The second respondent's mother was a Hindu. His father was forced to leave his parental home, since he married a Hindu lady. The matrimonial relationship between his parents did not last long. The second respondent was only two years old when his parents parted. His grand parents came to his rescue and they looked after him and his younger brother. Ever since then, himself and his younger brother had been residing in the parental home and his brother is no more. The second respondent married the third respondent and is living with his family in his parental home having building Nos. IX/115 and IX/116 which is situated in seven cents of property. The petitioner was a permanent resident of Pathanapuram and is now with the help of one of her sisters claiming that the one portion of his parental house belonged to her and she had filed a Suit as WPC.14195/2010 Y 4 OS.No.547/2005. The Suit was earlier listed for trial on 4.1.2008 and it was dismissed for default. Thereafter, a petition was filed on 20.5.2009 after a delay of one year, four months and 17 days. It is stated that the petitioner is harassing the second respondent (submits the learned counsel for the second respondent) by peeping into the private life of the second respondent, with the aid of her younger sister. It is stated that a complaint was filed by the petitioner alleging that the ration card which is possessed by the second respondent is forged. Based on the said complaint, an enquiry was conducted and the allegations levelled against the second respondent were found to be false. Dissatisfied with this, the petitioner made an attempt to establish that the second respondent is not residing in the residential building in question. On the basis of one such complaint on 6.10.2007, the Municipal Secretary conducted an enquiry and prepared Ext.R2(b) Report which clearly showed that the one single building is having separate building numbers. WPC.14195/2010 Y 5 Thereafter, the second respondent sent a representation to the Secretary of the Municipal Council, Pathanamthitta vide Ext.R2 (c). Ext.R2(d) is a representation sent to the Chief Secretary, Government of Kerala. Ext.R2(e) is the acknowledgment card. It is stated that the petitioner has approached this Court with unclean hands. It is also stated that there is nothing to show that Police have not discharged their duty. 4. A Reply Affidavit is filed producing Exts.P3 to P12. Ext.P3 is the Written Statement filed by the father of the second respondent. Ext.P4 is the copy of the FIR on the basis of the complaint of the petitioner. There was inaction. Petitioner filed Ext.P5 before the Superintendent of Police, Pathanamthitta. It is stated that the Deputy Superintendent of Police told that it is only an interim order. Second respondent is the local leader of DYFI having immense influence. The Secretary of the Panchayat cancelled the Certificate issued to the second respondent. Ext.P6 is the letter produced in this regard. By Ext.P7, the Secretary informed the Taluk Supply Officer that WPC.14195/2010 Y 6 the second respondent is not a resident of IX/116. The District Collector, Pathanamthitta directed the Taluk Supply Officer to cancel the Ration Card issued, vide Ext.P8. Petitioner was informed by Ext.P9 that vide Ext.P8, the ration card issued to the second respondent has been cancelled. Ext.P10 is a report in a Newspaper produced to show that the second respondent trespassed into the Secretary's Office with certain anti-social elements and restrained the Secretary and abused him on coming to know about the cancellation. It is stated that the political party leaders disowned the responsibility stating that neither the DYFI nor the CPM has any say in the matter. Ext.P11 is the copy of the complaint. Ext.P12 is the FIR. 5. Still later, the petitioner has produced Exts.P13 to P19. It is stated that since three families are residing, there are three door numbers, namely 9/114, 9/115 and 9/116. It is stated that the petitioner came into possession, title and ownership by Document No.368/1994 dated 29.1.1994. Earlier, the father of the petitioner had executed document No.1053 of 1988 WPC.14195/2010 Y 7 regarding two cents of property and later by Ext.P13, the same was sold to the father of the second respondent. The father and mother were residing in the petitioner's portion till their death. Her father expired in 1995 and mother expired in 2009. They were being maintained by the petitioner. It is stated that even after her marriage, she used to go and reside in the said portion and two or three days, she used to go to her husband's residence at Pathanapuram. When there was threat and disturbance, the petitioner filed OS.No.547/2005. Actually, the prayer in the same was a decree for fixation of boundary and consequential relief. Ext.P16 is the injunction order which was not challenged and no petition was filed to vacate that order. Ext.P17 is the copy of the relevant page of the ration card. It is stated that the mother of the second respondent is the first wife of her brother Ninar Sahib and she is residing at Chittar Panchayat and the second respondent also is residing with her. It is stated that the petitioner is the lawful owner in title and possession of 2 and ¾ cents of land in the portion of the building. There is no WPC.14195/2010 Y 8 challenge or dispute to her title, ownership or possession till date. It is stated that Ext.P19 is the communication of the District Collector. 6. We heard the learned counsel for the petitioner, learned counsel appearing for respondents 2 and 3 as also the learned Government Pleader. 7. Parties reiterate their pleadings. It is pointed out by the petitioner that going by the Written Statement of the father of the second respondent, he does not appear to have any objection in the Suit being decreed. We have already extracted the prayer. There is a Suit pending. The Suit had been filed quite some time ago and the prayer in the Suit was apparently based on the document of the year 1994 and what was sought was fixation of boundary and ancillary reliefs. The Suit was, however, dismissed for default and the Application for restoration was filed in 2009 by the petitioner and subsequently it stands restored. It is true that there was an order of injunction which, of course, was an ex parte order. But, with the dismissal of the WPC.14195/2010 Y 9 Suit, the order also was eclipsed. It may be that upon the restoration of the Suit, the interim order may have revived. We are of the view that in a Writ Petition where the relief sought is to grant protection for peaceful residence, partaking of a pronouncement of this Court on property rights, when the rights are actually pending adjudication in the civil court, it may not be very appropriate that this Court should grant protection as sought for. The interim order, as we have already noted, even if it has come back to life upon the restoration of the Suit, continues to be an ex parte order. Of course, the petitioner has every right to seek relief before the civil court in accordance with law. 8. Learned counsel for respondents 2 and 3 would submit that there will be no threat as against the life of the petitioner. We record the submission. We further direct that in case there is any threat to the life of the petitioner, it is open to the petitioner to approach the first respondent to ensure that her life is protected. As far as the prayer as sought in the Writ Petition WPC.14195/2010 Y 10 is concerned, we relegate the petitioner to approach the civil court for appropriate relief. The Writ Petition is disposed of as above. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge