IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19407 of 2008(I)
1. K.M.ELIAS, S/O MATHAI, AGED 45 YEARS,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. THE DISTRICT SUPERINTENDENT OF POLICE,
3. THE CIRCLR INSPECTOR OF POLICE,
4. GEORGE K.K., S/O KURIAN, AGED ABOUT 58
5. POULOSE K.K.,S/O KURIAN, AGED ABOUT 48
6. ELIAS K.K. S/O KURIAN,AGED ABOUT 24
7. JOSE K.K., S/O KURIAN, AGED ABOUT 52
For Petitioner :SRI.ALEXANDER JOSEPH
For Respondent :SRI.P.FAZIL
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :26/09/2008
O R D E R
K. BALAKRISHNAN NAIR & V.K.MOHANAN,JJ.
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W.P.(C) No.19407 OF 2008
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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)
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