IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).No. 4997 of 2010(Y) ------------------------- PETITIONERS: --------------- 1. MATHEW V.E, VALLON THAYYIL HOUSE THOPPUMPADI, COCHIN-5 2. MARY MATHEW W/O.MATHEW V.E, VALLON THAYYIL HOUSE THOPPUMPADI, COCHIN-5 BY ADV. SRI.DEEPU THANKAN SMT.G.RANJITA RESPONDENTS: --------------- 1. CIRCLE INSPECTOR OF POLICE KUTHIYATHODU, ALAPPUZHA DISTRICT. 2. SUB INSPECTOR OF POLICE AROOR POLICE STATION. 3. THANKAPPAN, S/O.KUNJI PULITHARA VEEDU, CHANDIROOR PO,CHERTHALA. 4. SHAJI S/O.THANKAPPAN, PULITHARA VEEDU, CHANDIROOR PO,CHERTHALA. GOVERNMENT PLEADER, SHRI T K VIPINDAS FOR R1-2 ADV. SRI.V.P.PRASAD FOR R3-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2010, THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING: WP(C).No. 4997 of 2010 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 : TRUE COPY OF THE TAX RECEIPT. EXT.P2 : TRUE COPY OF THE MAHAZAR DT.26.2.1980. EXT.P3 : TRUE COPY OF THE JUDGMENT AND DECREE OF THE THE PRINCIPAL MUNSIFF'S COURT, CHERTHALA DT. 31.7.2002 IN O.S. 871/2000 EXT.P4 : TRUE COPY OF THE INTERIM REPORT AND FINAL REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER. EXT.P5 : TRUE COPY OF THE ORDER OF THE PRINCIPAL MUNSIFF CHERTHALA DT.7.3.2005. EXT.P6 : TRUE COPY OF THE ORDER OF THE PRINCIPAL MUNSIFF CHERTHALA DT.7.3.2005. EXT.P7 : TRUE COPY OF THE WARRANT FOR SENDING THE RESPONDENTS TO JAIL ISSUED UNDER THE PROVISIONS OF THE CPC. EXT.P8 : TRUE COPY OF THE WARRANT FOR SENDING THE RESPONDENTS TO JAIL ISSUED UNDER THE PROVISIONS OF THE CPC. EXT.P9 : TRUE COPY OF THE LETTER ISSUED BY PRINCIPAL SECRETARY, REVENUE DEPARTMENT, GOVT. OF KERALA DT.10.9.2007. EXT.P10 : TRUE COPY OF THE COMPLAINT SUBMITTED TO THE RESPONDENTS 1 & 2 BY THE PETITIONER DT.2.2.10 EXT.P11 : TRUE COPY OF THE COMPLAINT SUBMITTED TO THE RESPONDENTS 1 & 2 BY THE PETITIONER DT.2.2.10 EXT.P12 : TRUE COPY OF THE RECEIPTS ISSUED BY THE RESPECTIVE POLICE STATIONS. RESPONDENTS' EXHIBITS : NIL // TRUE COPY// K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 4997 of 2010 Y - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the .. th day of .... , 2010. JUDGMENT Joseph Francis J., This Writ Petition under Article 226 of Constitution of India is filed with the following 2 main prayers: (i) Issue a writ of mandamus or any other writ or direction directing respondents 1 and 2 to grant adequate police protection to the petitioners and their family members and to enter in to the property covered by the Ext.P3 judgment and decree from the obstructions created by respondents 3 and 4. (ii) Issue a writ of mandamus or any other writ or order, directing the 1st respondent to depute police personals and direct them to be present in the 1 acre 59 cents of property covered by Ext P3 as and when the petitioners or their men go for taking yield from there.” W.P.(C) No. 4997 of 2010 2 2. The case of the petitioners is briefly as follows. Petitioners are husband and wife. They and their children are the owners of 1 acre and 59 cents of property situated in Aroor village. The above said property was purchased by them in the year 2009. 3. The respondents 3 and 4 are residing in 10 cents of Kudikidappu land in the above said property and kudikidappu right was given to the 4th respondent as per orders of the Land Tribunal Cherthala in the year 1980 and they have no right over the above said 1.59 acres of land. 4. However respondents 3 and 4 started untenable claim on the remaining area from the property and obstructed the original owner from taking yields from the property. There by the original owner filed a civil suit before the Munsiff's court Cherthala as O.S. No. 871 of 2000. The said court passed a decree of injunction restraining the respondents 3 & 4 from entering into the property and causing any obstruction to the original owners. W.P.(C) No. 4997 of 2010 3 5. After violation of the injunction orders the respondents 3 and 4 restrained the original owner from entering into the properties and taking yields from the coconut palms. Thereby the original owner filed an execution petition and their attempt to take yields with the aid of an Advocate Commissioner was also resisted by the respondents 3 and 4. Since the injunction order was violated, Munsiff's Court Cherthala initiated prosecution proceeding against them and send to civil prison for 15 days. The original owner could enjoy the fruits of decree only in the year 2007 after a period of 5 years of getting a decree in his favour. 6. Even after the imprisonment the respondents 3 and 4 made complaints to Chief Minister seeking his intervention in the matter. However the same was also turned down by revenue Secretary of the State informing them that they have title over 10 cents of land and the remaining areas are owned by the original owner and their successor in interest. W.P.(C) No. 4997 of 2010 4 7. After purchasing the property petitioners have taken yield once in the year 2009. However when the 1st petitioner went to take yields on 30.1.10, the respondents 3 and 4 objected with weapons in their hand and did not allow him to enter in to the property. Thereafter 1st petitioner made a complaint to respondents 1 and 2 seeking their held to take yield from the property and also explained about the injunction order obtained by his predecessor. Though the 1st respondent has submitted that he is not scared about the prosecution proceeding as it would take at least 5 years to complete as earlier. The 1st respondent has informed the petitioner that they are ready to give police protection if it is directed by the High Court as a civil dispute. 8. Respondents 3 and 4 filed counter affidavit to which the petitioners filed reply affidavit. 9. Heard the learned counsel for the petitioners and for the party respondents and also the Government Pleader. W.P.(C) No. 4997 of 2010 5 10. In the counter affidavit filed by respondents 3 and 4 it is stated that they never obstructed the petitioners as alleged in the writ petition. In the writ petition it is stated that 1 acre 59 cents of property comprised in Sy. Nos. 87/2A, 2B, 2C, 2D, 2D2 and 2F of Aroor Village originally belonged to the children of Sreedhara Panicker and his wife Ammukutty and after their death the property is devolved upon their children Chandiroor Vijayan and 4 others. From them the immediate predecessor of petitioners purchased the property. 3rd respondent is father of the 4th respondent and they are residing in that 10 cents of property given to them as kudikidappu. The 3rd respondent filed O.A. No. 375 of 1979 before the Land Tribunal Cherthala for purchase of 10 cents of kudikidappu right. Ext. P2 is the copy of mahazar prepared in that case allotting 10 cents in Sy. No. 87/2A of Aroor Village to the third respondent. Chandiroor Vijayan filed O.S. No. 871 of 2000 before the Munsiff Court Cherthala against R3 and 4 herein who are, defendants 1 and W.P.(C) No. 4997 of 2010 6 2 in that suit for a permanent prohibitory injunction. Ext.P3 is the copy of the judgment in the suit dated 31.7.2002. 11. In the written statement filed by defendants 1 and 2 in that suit, it is contended that after the commencement of the Kerala Land Reforms Act, they purchased 10 cents as kudikidappu right, and the defendants have never raised any claim over any portion except 10 cents given as kudikidappu. Ext.P3 is the copy of decree in O.S. No. 871 of 2000 of Munsiff Court, Cherthala. That suit was decreed and the defendants and the men under them were restrained by a decree of permanent prohibitory injunction from trespassing into the property except the property which is using by them as pathway for ingress and egress or any obstructions from peaceful enjoyment of the property by the plaintiffs. When the defendants 1 and 2 violated the injunction decree they were detained in civil prison for 15 days each, which is evident from Ext.P5 and P6 warrant of commitment of judgment debtor. In view of the Ext.P3 W.P.(C) No. 4997 of 2010 7 decree respondents 3 and 4 cannot raise any claim of right over the property belonging to the petitioners and their children. When respondents 3 and 4 obstructed petitioners from taking the income from the property the first petitioner filed Ext.P10 before the first respondent - C.I. of Police, Kuthiathode and Ext.P11 complaint before the 2nd respondent - S.I. of Police, Aroor. 12. Since the petitioners have legal right over the disputed property and as the respondents 3 and 4 have no manner of right to obstruct the petitioners from taking income from the property, respondents 1 and 2 are legally bound to give protection as prayed for by the petitioners. Accordingly this Writ Petition is allowed. Respondents 1 and 2 are directed to give adequate police protection to the petitioners and their family members to enter into the property covered by Ext.P3 judgment and decree from obstructions created by respondents 3 and 4. Respondents 1 and 2 are also directed to give W.P.(C) No. 4997 of 2010 8 adequate protection to the petitioners and their men for taking yield from that property. K.M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/