IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 WP(C).No. 2068 of 2011(G) ------------------------- PETITIONER(S): --------------- S.INDUMATHY THANKACHI,W/O.ANIL PILLAI, ANANDA BHAVAN,THUMPARA,RISHIMANGALAM, THIRUVANANTHAPURAM. BY ADV. SRI.M.NARENDRA KUMAR SRI.P.B.PRADEEP SMT.LAYA SIMON RESPONDENTS: --------------- 1. STATE OF KERALA-REPRESENTED BY THE SECRETARY, TO MINISTRY OF HOME,SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF POLICE, THIRUVANANTHAPURAM. 3. S.I.OF POLICE,VANCHIYOOR, THIRUVANANTHAPURAM. 4. R.DAYAKUMARI,AGED 43 YEARS, D/O.RANI KUMARI,MALAMEL VEEDU,T.C.40/548, 3RD PUTHEN STREET,SREEVARAHAM, THIRUVANANTHAPURAM. 5. R.KUMARI SOBHA,AGED 33 YEARS, D/O.RANI KUMARI,MALAMEL VEEDU,T.C.40/548, 3RD PUTHEN STREET,SREEVARAHAM,THIRUVANANTHAPURAM. 6. BALACHANDRAN NAIR,H/O.KUMARI SOBHA, MALAMEL VEEDU,T.C.40/548,3RD PUTHEN STREET, SREEVARAHAM,THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. T.K.VIPINDAS ADV. SRI.S.V.RAJAN FOR R4,5 SRI.R.SUDHISH FOR R4,5 SMT.M.MANJU FOR R4,5 SMT.V.P.GEETHA KUMARY FOR R4,5 SMT.SHIBI. K.P. SRI.K.R.RANJITH FOR R4,5 SRI.A.N.PREMLAL FOR R4,5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2068 of 2011(G) APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE JUDGMENT IN O.S.NO.460/1989 DT.31.03.1997. EXT.P2: TRUE COPY OF THE JUDGMENT IN A.S.NO.703/98 DT.08.03.2010. EXT.P3: TRUE COPY OF ADVOCATE COMMISSIONER REPORT. EXT.P4: TRUE COPY OF THE COMPLAINT DT.15.12.2010 FILED BEFORE THE 3RD RESPONDENT. EXT.P5: TRUE COPY OF CMP NO.5146/2010 FILED BEFORE THE ADDL.CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM DT.19.12.2010. EXT.P6: TRUE COPY OF THE COMPLAINT DT.20.12.2010 TO THE 2ND RESPONDENT. EXT.P7: TRUE COPY OF THE NEWS APPEARING IN HINDU DAILY DT.25.10.2009. /TRUE COPY/ R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.2068 of 2011 ***************************** Dated this the 27th day of January, 2011 JUDGMENT BASANT, J. The petitioner has come to this Court with this petition under Article 226 of the Constitution of India for issue of directions to respondents 1 to 3 to afford police protection to her against contumacious, culpable, wanton and violent acts of respondents 4 to 6. 2. The petitioner claims to be residing in a residential building in a property, which belongs to 7 sharers. Some of the sharers are not alive and their legal heirs have stepped into the shoes of those sharers. Parties went to civil court. A preliminary decree for partition has already been passed and an application for passing a final decree for partition is pending. According to the petitioner, she is in exclusive occupation of the building in the property ordered to be partitioned. She contends that respondents 4 to 6, admittedly sharers and parties to the pending partition suit, have trespassed into the property and had assaulted/attacked the petitioner and her children. The learned counsel for the petitioner submits that the petitioner is not W.P(C) No.2068 of 2011 2 seeking any relief in respect of the property, but her person and life may be ordered to be protected. This in short is the plea. 3. Respondent Nos.4 and 5 have entered appearance through a counsel. The 6th respondent is the husband of the 5th respondent. The learned counsel for party respondents contends that the party respondents are also residing in the building in question. The petitioner has no exclusive right to reside in the building. The petitioner is attempting to create and project an exclusive right to reside in the building, so that she can use the same for her advantage when final decree for partition is passed. There is no semblance of truth in the allegation that respondents 4 to 6 had trespassed into the building or assaulted/attacked the petitioner. The dispute is about the right to reside in the building in question. Respondents 4 to 6 have not indulged in any culpable overt acts. They assert their right of residence in the property. 4. The learned Government Pleader after taking instructions from respondents 1 to 3 submits that in the perception of respondents 1 to 3, there is no threat to the life or person of the petitioner. It is a purely civil dispute. In Ext.P1 preliminary judgment, no finding has been rendered about the W.P(C) No.2068 of 2011 3 right to reside in the property. In the final decree proceedings, parties shall have to claim and assert such rights if any for exclusive possession and residence in the property. In spite of the alleged incident, the petitioner or respondents 4 to 6 have not chosen to obtain any interim orders from the civil court. The police cannot, in these circumstances, decide who is entitled to reside in the property. Their allegations and counter allegations cannot be resolved by the police. 5. The learned Government Pleader submits that it is true that a crime has been registered. But that crime was registered when a private complaint filed by the petitioner was referred to the police under Section 156(3) Cr.P.C. If there be any threat to the life or person of the petitioner or respondents 4 to 6, appropriate action shall be taken by the police. No specific directions are necessary, in these circumstances, submits the learned Government Pleader. 6. We have considered all the relevant circumstances. It appears to be undisputed that the petitioner as well as respondents 4 to 6 have rights over the property. As to who is in possession and as to who has the exclusive right to use the property cannot be decided by the police or by this Court in this W.P(C) No.2068 of 2011 4 proceedings under Article 226 of the Constitution. Parties must seek appropriate directions from the civil court, before which the dispute is pending, if they want any such direction. 7. We take note of the submission of the learned Government Pleader that there is no threat to the life or person of the petitioner or respondents 4 to 6. We are not, in these circumstances, satisfied that any specific directions deserve to be issued. 8. This Writ Petition is accordingly dismissed. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/