IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WP(C).No. 31100 of 2008(B) -------------------------- PETITIONER(S): --------------- 1. V.V.JACOB, JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (RETD.), VARIATH HOUSE, CHERANALLOOR, KOCHI-682034. 2. JOHNSON JACOB, VARIATH HOUSE, CHERANALLOOR, KOCHI-682034. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): --------------- 1. THE COMMISSIONER OF POLICE, COCHIN CITY, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, CHERANALLOOR, KOCHI-682034. 3. THE SUB INSPECTOR OF POLICE, ELOOR, UDYOGAMANDAL, ELOOR. 4. SMT.JAIN JACOB, KIZHUPPILLY HOUSE, JANATHA ROAD, P.O.MANJUMMEL, (CLERK, KERALA STATE RUBBER MARKETING FEDERATION, GANDHI NAGAR, ERNAKULAM). 5. SHRI.K.J.BENNY, KIZHUPPILLY HOUSE, JANATHA ROAD, P.O.MANJUMMEL, (PREVENTIVE OFFICER, ERNAKULAM ASST. EXCISE COMMISSIONER OFFICE, ERNAKULAM.) ADV. SRI.T.K.AJITHKUMAR (VALATH) FOR R4-5 SR. GOVERNMENT PLEADER SRI.BENJAMIN PAUL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 31100/2008 APPENDIX PETITIONERS' EXTS. EXT.P1 - TRUE COPY OF SETTLEMENT DEED NO.2323/2008 OF THE S.R.O., ERNAKULAM, DATED 19.5.2003. EXT.P2 - TRUE COPY OF THE PETITION DATED NIL/6/2006 BEFORE THE 3RD RESPONDENT FROM THE 4TH RESPONDENT. EXT.P3 - TRUE COPY OF THE CERTIFIED COPY OF DOCUMENT NO.1351/2008 DATED 18.3.2008. EXT.P4 - TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF INJUNCTION APPLICATION DATED 9.7.2008, BEFORE THE MUNSIFF'S COURT, ERNAKULAM. EXT.P5 - TRUE COPY OF THE INJUNCTION ORDER DATED 10.7.2008 OF THE MUNSIFF'S COURT, ERNAKULAM IN IA NO.5450/08 IN O.S. 899/08. EXT.P6 - TRUE COPY OF THE PETITION DATED 18.9.2008 BEFORE THE S.I. OF POLICE, CHERANALLUR POLICE STATION FROM THE 1ST PETITIONER. EXT.P7 - TRUE COPY OF THE REPRESENTATION BEFORE THE 2ND RESPONDENT DATED 19.9.2008. EXT.P8 - TRUE COPY OF THE REPRESENTATION DATED 23.9.2008 BEFORE THE S.I. OF POLICE, CHERANALLOOR FROM PETITIONER NO.1. EXT.P9 - TRUE COPY OF THE REPRESENTATION DATED 24.9.2008 BEFORE THE 2ND RESPONDENT FROM THE 1ST PETITIONER. EXT.P10 - TRUE COPY OF THE REPRESENTATION DATED 6.10.2008 FROM THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P11 - TRUE COPY OF BASIC TAX RECEIPT DATED 6.5.2008. EXT.P12 - TRUE COPY OF THE RECEIPT DATED 17.2.2007 ISSUED BY THE PANCHAYAT. EXT.P13 - TRUE COPY OF BILL NO.84294 DATED 28.12.2007. EXT.P13(a) – TRUE COPY OF O.P.NO.29014 DATED 30.1.2008. EXT.P13(b) – TRUE COPY OF BILL NO.93831 DATED 30.1.2008. EXT.P13(c) – TRUE COPY OF BILL NO.10378 DATED 4.3.2008. EXT.P13(d) – TRUE COPY OF BILL NO.2174 DATED 8.4.2008. EXT.P13(e) – TRUE COPY OF BILL NO.19560 DATED 13.6.2008. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- W.P.(C) NO. 31100 OF 2008-B ----------------------------------------- Dated 12th November, 2008. JUDGMENT Balakrishnan Nair, J. The 1st petitioner is the father of the 2nd petitioner. An item of property owned by the 1st petitioner's wife and 2nd petitioner's mother was gifted to the 2nd petitioner, as per Ext.P1 gift deed dated 19.5.2003. The petitioners submit, thereafter, the 2nd petitioner is in possession of the property and the petitioners are residing there. Later, the 2nd petitioner's mother cancelled Ext.P1 as per Ext.P3 cancellation deed. The 4th respondent is the 2nd petitioner's sister and the 5th respondent is her husband. The 5th respondent is a drunkard and a trouble maker. After the execution of Ext.P3, the said respondent is trying to make forcible entry into the property covered by Ext.P1 and also the building in it. Aggrieved by the above actions of the 5th respondent, including threatening through telephone, the 1st petitioner preferred Exts.P6 to P9 WPC 31100/08 2 representations before the local police. He has also preferred Ext.P10 representation before the City Police Commissioner. The petitioners also point out that seeking a declaration that Ext.P3 is null and void, they have already moved the civil court by filing O.S.No.899/2008. The Munsiff's Court has passed Ext.P5 injunction order in that suit, restraining the 2nd petitioner's mother from creating any document in respect of the plaint schedule property, based on Ext.P3. Since the police did not take effective action against the 5th respondent, this Writ Petition is filed, seeking necessary direction to the police officers to grant protection to the petitioners. 2. The learned Government Pleader, upon instructions, submitted that the allegations against the 5th respondent are unfounded. Since the gift in favour of the 2nd petitioner as per Ext.P1 was cancelled, there is a civil dispute in the family concerning that property and the complaints before the police are made in connection with that dispute. 3. The respondents 4 and 5 have filed a counter affidavit, denying all the allegations against them. In fact, the 2nd petitioner is trying to attack the 5th respondent and his mother-in-law, it is WPC 31100/08 3 submitted. In the said affidavit, the 5th respondent has stated that on 17.9.2008 the mother of the 2nd petitioner went to the disputed property to reside in the building there. She was accompanied by the 4th respondent also. At that time the 2nd petitioner obstructed his mother and openly threatened that she will not be allowed to reside in that property at any cost. Other threats were also held out. So, respondents 4 and 5 point out that, in fact, the 2nd petitioner is at fault and therefore, they pray, the writ petition may be dismissed. 4. Though the petitioners have filed a reply affidavit, we notice that the above averment of the 5th respondent regarding the incident on 17.9.2008 is not specifically denied. 5. We heard the learned counsel on both sides. The learned counsel for the petitioners submitted that the respondents 4 and 5 have no right to enter the property. But, they are using threat and violence to make their entry. The learned counsel for respondents 4 and 5 submitted that even as per Ext.P1, the wife of the 1st petitioner, who is the mother of the 2nd petitioner, has the right to take usufructs from the property and reside there. That right under Ext.P1 was denied and WPC 31100/08 4 therefore, she rightly executed Ext.P3, it is submitted. 6. If respondents 4 and 5 are entering the property, over which the petitioners claim possession, their remedy lies before the civil court and not before the Police Station. Regarding the threat of violence, we notice that it is a disputed question. Both sides make allegations against the other side. Based on that, this Court cannot take any decision. In view of the above position, this Writ Petition is dismissed without prejudice to the contentions of the petitioners and their right to move the competent civil/criminal courts for appropriate reliefs. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/