IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 WP(C).No. 27123 of 2011(M) -------------------------- PETITIONER(S): --------------- N. RAJENDRAN, RAM LAKSHMI, KANNANTHODATH ROAD, EDAPPALLY, COCHIN-24. BY ADV. SRI.GEORGE POONTHOTTAM SRI.SUJITH MATHEW JOSE SRI.M.PRAVEESH SRI.N.ANAND RESPONDENT(S): --------------- 1. THE SUPERINTENDENT OF POLICE, KOTTAYAM-686001. 2. THE CIRCLE INSPECTOR OF POLICE, KOTTAYAM-686001. 3. THE SUB INSPECTOR OF POLICE, GANDHI NAGAR, KOTTAYAM-686006. 4. RAJALAKSHMI, SUNNY PALACE, EDAPPALLY, COCHIN-24. 5. CHANDRASHEKARAN @ THAMPI, PULIKKAL KUZHIYIL HOUSE, KAIPUZHA P.O., KOTTAYAM-686602. BY GOVT. PLEADER SRI.M.K.ABOOBACKER ADV. SRI.PHILIP T.VARGHESE FOR R3 TO 5 SRI.THOMAS T.VARGHESE FOR R3 TO 5 SMT.ACHU SUBHA ABRAHAM FOR R3 TO 5 SMT.C.A.SABITHA FOR R3 TO 5 SRI.ARUN MATHEW VADAKKAN FOR R3 TO 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27123 of 2011(M) APPENDIX PETITIONER(S) EXHIBITS EXT.P1:TRUE COPY OF THE SALE DEED NO.4297/2007. EXT.P2:TRUE COPY OF THE ORDER DATED 12.12.2001 OF THE LAND TRIBUNAL KOTTAYAM. EXT.P3:TRUE COPY OF THE PURCHASE CERTIFICATE DATED 13.3.2002 ISSUED BY THE LAND TRIBUNAL, KOTTAYAM. EXT.P4: TRUE COPY OF THE ORDER DATED 26.3.2008 IN A.A.05/002 OF THE APPELLATE AUTHORITY, ALAPUZHA. EXT.P5:TRUE COPY OF THE JUDGMENT DATED 31.7.2009 IN OS 133/2008. EXT.P6:TRUE COPY OF THE ORDER DATED 15.3.2011 OF THE APPELLATE AUTHORITY (LR) EXT.P7:TRUE COPY OF THE COMPLAINT DATED 17.5.2011 GIVEN BEFORE THE 3RD RESPONDENT. EXT.P8:TRUE COPY OF THE PLAINT IN OS 97/2011 FILED BY M.S. RADHA. EXT.P9:TRUE COPY OF THE PLAINT IN OS 98/2011 FILED BY THE PETITIONER. EXT.P10: TRUE COPY OF THE COMMISSION REPORT IN OS 97/2011. EXT.P11: TRUE COPY OF THE COMMISSION REPORT IN OS 98/2011. EXT.P12:TRUE COPY OF THE COMPLAINT DATED 11.7.2011 GIVEN TO THE 2ND RESPONDENT. EXT.P13:TRUE COPY OF THE FIR IN CRIME 681/2011 OF GANDHI NAGAR POLICE STATION. EXT.P14: TRUE COPY OF THE PETITION DATED 20.9.2011. EXT.P15: COPY OF THE PETITION DTD.20.10.2011 RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE ab PIUS C.KURIAKOSE & K.HARILAL,JJ ------------------------------------------------- W.P(C) No.27123 of 2011 -------------------------------------------------- Dated this the 2nd day of December, 2011 J U D G M E N T Pius C. Kuriakose, J The petitioner has filed this writ petition under Article 226 seeking police protection directions in respect of rubber plantation having an extent of 1 Acre 8 cents in two different survey numbers in Kaipuzha Village for preserving the rubber plantation as well, as to the persons of the petitioner and persons employed by him for preserving the property. Another relief sought for is a direction to the police officer respondents to take speedy action on Exts.P12, P13 and P14 petitions filed before them. A detailed counter affidavit has been filed by the party respondents. According to them the police protection directions cannot be issued at all, as it is 4th respondent who is in possession of the property. The issue is pending not only before the Munsiff's Court but also before the land tribunal. 2. We have heard the submissions of Mr.George Poonthottam, the learned counsel for the petitioner and those of Sri.Philip T. Varghese, the learned counsel appearing for the W.P(C) No.27123 of 2011 2 respondents. We have heard the submissions of Mr.M.K.Aboobacker, Senior Government Pleader also 3. Mr.M.K.Aboobacker the learned Senior Government Pleader on the basis of instructions imparted to him by the police officers that on considering a complaint submitted by the petitioner, the 3rd respondent registered Crime No.681/2011 in Gandhi Nagar Police Station against respondents 4 and 5 and one Smt.Subaida for offences under Sections 120(b), 109, 427, 379, 411, 414 and Section 34 IPC. But on investigation it was found that the complaint was not a true one. Accordingly, refer report was submitted and complaint was sought to be closed. Sri.George Poonthottam would draw our attention to Ext.P5 judgment, especially to paragraphs 12 and 13 of Ext.P5. The learned counsel argued that the findings entered by the learned Munisff in those paragraphs will show that the 4th respondent's claim of having possession is without any basis. The counsel submitted that it is true that the appellate authority has set aside the assignment order and passed an order of remand. But when it is considered that the assignment order was issued in a proceedings initiated suo moto, the presumption to be drawn is that the petitioner has been in possession. When we enquired of W.P(C) No.27123 of 2011 3 Mr.Poonthottam as to why directions of police protection etc. cannot be obtained from the Munsiff's Court, Ettumanoor, the learned counsel submitted that there is no presiding officer in the Munsiff's Court, Ettumanoor for months together and that is the difficulty in approaching the Munsiff's Court. 4. Sri.Philip T. Varghese, the learned counsel for the respondents 4 and 5 however opposed all the submissions of Mr.George Poonthottam. He submitted that the claims of petitioner that he is in possession is contrary to truth. According to him there is a subsisting civil dispute between the petitioner and the party respondents and mother of the 4th respondent and her siblings. In view of the subsistence of the civil disputes, it will not be proper on the part of this Court to issue police protection directions straight away. 5. We have given our anxious consideration to the submissions addressed at the Bar. The submissions of Mr.Poothottam founded as the same are upon the observations in Paragraphs 12 and 13 of Ext.P5 are certainly attractive. We also notice that Ext.P1 title deed will show that the title and possession has been conveyed to the petitioner. But at the same time the submissions of Mr.Philip T. Varghese that there is W.P(C) No.27123 of 2011 4 subsisting civil dispute in respect of the property cannot be lightly brushed aside. We also notice that the question of the tenancy rights claimed by the petitioner is being re-considered by the land tribunal pursuant to the remand order passed by the appellate authority. We therefore are not inclined to issue police protection directions straight away. As for the relief No.2 we are of the view that the above relief cannot be granted as the police appears to have conducted some enquiry and came to a conclusion that in view of the subsisting civil dispute between the parties they cannot taken any action. So the only the relief the petitioner can aspire for relief No.1 sought for in this writ petition. According to us the petitioner should seek that relief from the competent civil court namely Ettumanoor Munsiff's Court. We are given to understand that the Magistrate, Ettumannoor is presently holding the charge of Munsiff, Ettumanoor. We direct the Judicial First Class Magistrate, Ettumanoor to entertain any application which may be filed by the petitioner in O.S.No.98/2011 seeking reliefs similar to relief No.1 claimed in this writ petition. If such application is filed by the petitioner within seven days from today the learned Magistrate will take up that application, hear the W.P(C) No.27123 of 2011 5 parties and pass proper orders on the application in accordance with law, at the earliest and at any rate within two weeks of the first hearing date of the application. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- K.HARILAL JUDGE //True Copy// P.A to Judge ab