IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 WP(C).No. 19407 of 2008(I) -------------------------- PETITIONER: --------------- K.M.ELIAS, S/O MATHAI, AGED 45 YEARS, KANJIRATHINGAL HOUSE, BOOTHATHANKETTU P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT SUPERINTENDENT OF POLICE, ERNAKULAM (RURAL) ALUVA. 3. THE CIRCLR INSPECTOR OF POLICE, KOTHAMANGALAM. 4. GEORGE K.K., S/O KURIAN, AGED ABOUT 58 YEARS,KANJIRATHINGAL HOUSE, BOOTHATHANKETTU P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT. 5. POULOSE K.K.,S/O KURIAN, AGED ABOUT 48 YEARS,KANJIRATHINGAL HOUSE, BOOTHATHANKETTU P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT. 6. ELIAS K.K. S/O KURIAN,AGED ABOUT 24 YEARS,,KANJIRATHINGAL HOUSE, BOOTHATHANKETTU P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT. 7. JOSE K.K., S/O KURIAN, AGED ABOUT 52 YEARS, ,KANJIRATHINGAL HOUSE, BOOTHATHANKETTU P.O. KOTHAMANGALAM, ERNAKULAM DISTRICT. ADV. SRI.P.FAZIL FOR R4 TO 7 SRI.SREEJITH V.S. FOR R4 TO 7 GOVERNMENT PLEADER, SRI.BENJAMIN PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.19407/2008 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE JUDGMENT DT.31.01.2007 OF THE MUNSIFF'S COURT, MUVATTUPUZHA IN O.S.NO.447/2001. EXT.P2: COPY OF THE DECREE DT.31.01.2007 OF THE MUNSIFF'S COURT, MUVATTUPUZHA IN O.S.NO.447/2001. EXT.P3: COPY OF THE COMPLAINT DT.24.06.2008 OF THE PETITIONER TO THE 3RD RESPONDENT. RESPONDENT'S EXTS: EXT.R4(a): COPY OF THE PLAINT IN O.S.NO.447/2001 IN THE FILE OF MUNSIFF'S COURT, MUVATTUPUZHA. EXT.R4(b): COPY OF THE MEMORANDUM OF APPEAL IN A.S.NO.73/2008 IN THE FILE OF THE SUB COURT, MUVATTUPUZHA. EXT.R4(c): COPY OF I.A.NO.1006/2008 IN A.S.NO.73/2008 IN THE FILE OF THE SUB COURT, MUVATTUPUZHA. //TRUE COPY// PA TO JUDGE. K. BALAKRISHNAN NAIR & V.K.MOHANAN,JJ. ------------------------------------- W.P.(C) No.19407 OF 2008 -------------------------------------- Dated this the 26th day of September, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioner claims possession and ownership over 1 Acre 37 cents of land in Survey Nos.556/2/3 and 555/1B/5 of Pindimana Village of Kothamangalam Taluk along with the legal heirs of his late brother Kuriakose. The respondents 4 to 7 are brothers. They are the cousins of the petitioner claiming partition of that property. They filed O.S.No.447/2001 before the Munsiff's Court, Muvattupuzha. The suit was dismissed by the said court by Ext.P1 judgment and Ext.P2 decree. Thereafter, when the petitioner attempted to do agricultural operations in the property and tried to cut and remove the timber standing there, the respondents 4 to 7 came and physically obstructed them. They threatened and manhandled them and threw stones at the petitioner's brother and father, it is submitted. So, he preferred Ext.P3 petition before the police seeking necessary protection to do agricultural operations in that property and also for cutting and removing the timber W.P.(C) No.19407/2008 2 standing there. Alleging that the police did not extend any helping hand, because of the influence of the 7th respondent, who is an Assistant Sub Inspector of Police, this writ petition was filed. 3. The respondents 4 to 7 have filed a counter affidavit stating that their mother was one of the co-owners of the property and the said property has been settled in favour of the petitioner and others without her junction. Therefore, they have filed a suit for partition which was dismissed by Ext.P1 judgment and Ext.P2 decree. Now they have preferred an appeal before the Appellate Court challenging the judgment and decree of the Munsiff's Court. They claim right and possession over the property. 4. The petitioner, in answer, submitted that the appeal has been only filed now to show that they have some semblance of claim over that property. As long as Exts.P1 and P2 are remaining in force, the petitioner is entitled to get protection for doing the agricultural operations in the property concerned, it is submitted. 5. In this jurisdiction, we are concerned only with the failure of duty of the police. We cannot adjudicate the rival claims W.P.(C) No.19407/2008 3 of the parties and thereafter order protection based on our findings on their claims. Police cannot be conceded freedom to look into the papers submitted by both sides and take a decision as to who is entitled to get possession and thereafter order protection. If that be so, we are also not justified in issuing any direction to grant protection to the petitioner. The petitioner's father and brother are threatened only when they assert their right over the disputed property. So, we feel that the proper remedy for the petitioner is to move the competent civil court and get appropriate injunction orders against respondents 4 to 7. If they are disobeying the injunction order, the civil court has power to direct the police to render assistance to the petitioner to enforce the order of the civil court. In view of the above position, the writ petition is dismissed without prejudice to the contentions of both sides and the right of the petitioner to move other forums to redress his grievance. (K.BALAKRISHNAN NAIR, JUDGE) (V.K.MOHANAN, JUDGE) ps