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 17TH OCTOBER 2011 / 25TH ASWINA 1933 WP(C).No. 26529 of 2011(M) -------------------------- PETITIONER(S): --------------- SUDHALAL.K.R., S/O.LATE KUNJIRAMAN, AGED 63 YEARS, RESIDING PERMANENTLY AT VAISHNAVAM, ORUMA NAGAR-124, THATTAMALA P.O., KOLLAM-691 020. BY ADV. SRI.NIRMAL V NAIR SRI.SURAJ.S SMT.ARATHI ASHOK SRI.K.RAJAGOPAL RESPONDENT(S): --------------- 1. THE COMMISSIONER OF POLICE, CITY OF KOLLAM, KOLLAM-691 001. 2. SUB INSPECTOR OF POLICE, ERAVIPURAM, KOLLAM-691 020. 3. AL-AMEEN, PERUMADATHU THEKKETHIL, PANTHRANDU MURI CHERI, ERAVIPURAM VILLAGE, THATTAMALA P.O., KOLLAM-691 020. 4. ABDUL HAMEED, PERUMADATHU THEKKETHIL, PANTHRANDU MURI CHERI, ERAVIPURAM VILLAGE, THATTAMALA P.O., KOLLAM-691 020. 5. USAIBA BEEVI, PERUMADATHU THEKKETHIL, PANTHRANDU MURI CHERI, ERAVIPURAM VILLAGE, THATTAMALA P.O., KOLLAM-691 020. GOVT.PLEADER SRI.DINESH MATHEW MANJOORAN FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------------------- W.P.(C).No.26529 of 2011 ------------------------------------------- Dated this the 17th day of October, 2011 J U D G M E N T ---------------------- Pius C. Kuriakose, J. The petitioner in this writ petition under Article 226 seeks police protection to his life and his residential property admeasuring 13.50 cents located at Re.Sy.No.368/3 of the Eravipuram Village in Kollam District. On considering this writ petition for admission and the grievance of the petitioner that no action has been taken by the Sub Inspector of Police of Ext.P8 complaint, we issued the following interim order on 4.10.2011. “Notice by special messenger to R3 to R5. Government Pleader takes notice on behalf of R1 and R2. In the meanwhile the 2nd respondent Sub Inspector of police is directed to conduct an enquiry immediately into Ext.P8 complaint, if not already conducted. If the enquiry revealed there is threat to the life of the petitioner, he will take such action as is necessary for protecting the petitioner's life from any danger on account of R3 to R5 and acting under them. Post on 11.10.2011.” 2. The party respondents have not turned up before this court to traverse the averments in the writ petition. The averments in the writ petition stand established against them by non-traverse. The learned Government Pleader Mr.Dinesh Mathew Manjooran, on the basis of the instructions received from the Sub Inspector of Police, submitted before us that W.P.(C).26529/11 -2- O.S.275/10 is pending between the parties in Munsiff Court, Kollam in respect of the property in question. Ext.P8 petition was received in the police station from the petitioners. The enquiry revealed that there is a pathway dispute subsisting in respect of the above property. As the petitioner was trying to construct a compound wall across the pathway the party respondents obstructed the same. The Sub Inspector is of the opinion that to settle the dispute it is necessary to survey the properties of both the parties. Hence a request has been submitted to the Tahsildar, Kollam for surveying the property at the earliest. Mr.Dinesh Mathew Manjooran also submitted that at present there is no law and order situation or any threat to the life of the petitioner and his family. The Sub Inspector of Police has instructed the petitioner not to construct the compound wall till the disposal of the original suit. He has also warned the opposite party not to disturb the complainant or his property against the direction of the court. 3. As already indicated, all the allegations in the writ petition levelled against the party respondents stand established against them by non-traverse. We do not know how the Sub Inspector of Police could say that the suit O.S.No.275/10 is pending between the parties. So far as we can see the above suit has been decreed in favour of the petitioner by Ext.P7 judgment. W.P.(C).26529/11 -3- The suit was for perpetual injunction against construction of a pathway through the property and also from altering the nature of the property and its lie. The suit now stands decreed as prayed for. We are at a loss to understand how the Sub Inspector of Police could issue directions to the Tahsildar for conducting a measurement of the property belonging to the petitioner and the party respondents. We are of the view that so long as Ext.P7 judgment and the decree corresponding to the same stands the same, it has to be obeyed by the party respondents. As the party respondents have not chosen to traverse the averments in the writ petition, the duty of the 2nd respondent is to render protection to the property in question which appears to be the petitioner's residential property. The Sub Inspector of Police has stated in the written instructions incorporated by him to the Government Pleader that at the moment there is no threat to the petitioner's life. Be that as it may, we dispose of the writ petition issuing the following directions: So long as operation of Ext.P7 judgment and the corresponding decree is not stayed by a court of appeal, the 2nd respondent will ensure that the petitioner's possession of the property in question is not disturbed by the party respondents in any manner including the construction of a pathway through the W.P.(C).26529/11 -4- same. As the dispute between the petitioner and the party respondents is likely to result in law and order situation, there will be a direction to the 2nd respondent to keep constant vigil over the property in question as well as the petitioner and the party respondents and to ensure that the dispute between them does not give rise to any law and order situation or violence. As it is trite by decisions of this court by now, that a decree for perpetual injunction restraining trespass can be executed by seeking leave of the court for construction of compound wall we give liberty to the petitioner to move the civil court to have the decree passed in terms of Ext.P7 judgment executed in that manner also. If any such application is made by the petitioner before the court, the court will take a decision on the application with notice to the respondents. PIUS C. KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb