1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :: 24.11.2011 CORAM :: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)No.11923 of 2011 and M.P.(MD)No.1 of 2011 Raman ... Petitioner -Vs - 1. The Inspector of Police, Kottampatty Police Station, Kottampatty, Madurai District. 2. Rathinam 3. Sargunam 4. Vijayalakshmi 5. Mani 6. Chinnu ... Respondents (R-3 to R-6 given up by the endorsement dated 24.11.2011) Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus to direct the first respondent to give police protection to the petitioner and his properties in Survey Number 85/8, 85/9, 85/9B, 86/2A1, 86/2B, 210/8, 210/11, 210/12, 211/4 and 211/13B, Kottampatti Village, Melur Taluk, Madurai District from the interference of the respondent Nos.2 to 6. For Petitioner :: Mr. J. Barathan For Respondents :: Mr. M. Alagudevan for R-1 Special Government Pleader Mr. N. Balakrishnan for R-2 R-3 to R-6 Given Up - - - - - - O R D E R The petitioner has come up with the above writ petition, seeking a direction to the first respondent to give police protection, for protecting his possession of the properties, which he had taken delivery through the Executing Court. 2. Heard Mr. J. Bharathan, learned counsel for the petitioner and Mr. M. Alagudevan, learned Special Government Pleader for the first respondent and Mr. N. Balakrishnan, learned counsel for the second respondent. The petitioner has given up respondent Nos.3 to 6. https://hcservices.ecourts.gov.in/hcservices/ 2 3. Normally, a Writ of Mandamus to direct the police to protect the possession of a person, ought not to be granted by a Court, exercising jurisdiction under Article 226 of the Constitution of India. Civil rights and property rights of parties are to be agitated as well as enforced only through normal Civil Courts. This is for the reason that an elaborate procedure is laid down in the Code and the procedure is also time tested. But, the case on hand poses a challenge to the well established principle. 4. The petitioner filed a Suit for Partition against his biological mother as well as the second respondent in this writ petition, who was born to another lady, claimed by the petitioner to have been the second wife of his father. The Suit was decreed, declaring the right of the petitioner to partition and separate possession of his 1/3 share in the properties. The share allotted to the petitioner got enlarged after the death of his biological mother, who was the first defendant in the Suit. 5. The preliminary decree was confirmed on First Appeal filed by the second respondent and her mother. The second respondent appears to have filed a Second Appeal against the concurrent preliminary decrees with a long delay. 6. In the meantime, the petitioner also obtained a final decree and filed an Execution Petition in E.P.No.173 of 2009. In the Execution Proceedings, the Executing Court ordered delivery on 11.04.2011. After it was recorded that delivery could not be effected, the petitioner filed E.A.No.193 of 2011 for police aid. The same was allowed by the Executing Court on 26.04.2011 and the Executing Court also recorded delivery and terminated the E.P., on 30.05.2011. 7. It appears that thereafter, the petitioner made a complaint to the police that the Civil Court decree and the delivery recorded by the Civil Court were being thwarted by the respondent Nos.2 to 6. When the police initiated action, the second respondent herein filed Crl.O.P. (MD)No.13411 of 2011 under Section 482 of Code of Criminal Procedure, seeking a direction to the police not to harass her. The said application was allowed by this Court on 04.10.2011. Therefore, the police stopped further action, forcing the petitioner to come up with the above writ petition. 8. As pointed out earlier, the appropriate remedy open to the petitioner is actually to move the Civil Court for Injunction against the second respondent, if there was an attempt to trespass or an attempt to interfere with the possession, despite the delivery recorded by the Executing Court on 30.05.2011. But, this is a strange case where the Munsif Court may not be able to come to the rescue of the petitioner, in view of the directions obtained by the second respondent herein in Crl.O.P.(MD)No.13411 of 2011 dated 04.10.2011. Unfortunately, the petitioner herein was also not made as a party to Crl.O.P.(MD)No.13411 of 2011. The fact that delivery had been recorded by the Executing Court after ordering police protection was also not brought to the notice of the Court while Crl.O.P.(MD)No.13411 of 2011 was ordered. Therefore, today I cannot direct the petitioner to go back to the Civil Court, as I ought to do in normal circumstances. https://hcservices.ecourts.gov.in/hcservices/ 3 9. In view of the above, this writ petition is allowed, directing the first respondent to give protection to the possession of the petitioner of the properties in question, till the second respondent is able to obtain any order from any Civil Court. If the second respondent is able to obtain any relief from any Civil Court, the first respondent is bound by such an order or decree passed by the Civil Court. However, there will be no order as to costs. The connected M.P.(MD)No.1 of 2011 is closed. Sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar To: The Inspector of Police, Kottampatty Police Station, Kottampatty, Madurai District. + 1 cc to Mr.T.R.Jeyapalam, Advocate, SR No.41349 + 1 cc to Mr.N.Balakrishnan, Advocate, SR No.41530 W.P.(MD)No.11923 of 2011 and M.P.(MD)No.1 of 2011 24.11.2011 Dpn/- RJ/13.12.11 3p/4c https://hcservices.ecourts.gov.in/hcservices/