IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14195 of 2010(Y)
1. BEEVI AMMAL,EETTIMUTTIL VEEDU,PETTA,
... Petitioner
Vs
1. THE CIRCLE INSPECTOR OF POLICE,
... Respondent
2. FIROZE KHAN, ETTIMUTTIL VEEDU,
3. NIGILA FIROZE,W/O.FIROSE KHAN,
For Petitioner :SRI.B.S.SWATHY KUMAR
For Respondent :SRI.M.T.SURESHKUMAR
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :05/07/2010
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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W.P.(C). NO. 14195 OF 2010 Y
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Dated this the 5th July, 2010
JUDGMENT
K.M. Joseph, J.
Petitioner has approached this Court seeking the following
relief:
“1) Issue a writ of mandamus or any other
appropriate writ, order or direction directing the
1st respondent to afford adequate police protection
to the life of the petitioner enabling her to reside
peacefully in her residence bearing House
No.9/116 from the illegal threat, abuse and assault
from respondents 2, 3 and their henchmen;”
2. Briefly put, the case of the petitioner is as follows:
Petitioner is an aged lady. She is suffering from cancer.
Second respondent is her nephew and the third respondent is his
wife. Petitioner is residing in the middle portion of a building
on the immediate southern side of the building. (On the
southern side of the building, respondents 2 and 3 reside,
WPC.14195/2010 Y 2
submits the learned counsel for the petitioner). The said
buildings are family properties which have been partitioned.
Second respondent along with his henchmen are creating
nuisance to the petitioner in order to oust the petitioner from
that portion of the building and the third respondent also started
threatening and abusing the petitioner. Petitioner filed a Suit for
partition and fixing up of boundaries as OS.No.547/2005
against respondents 2 and 3 and another, wherein an interim
order of injunction was passed on 12.5.2005. It is stated that the
Suit is pending. The second respondent managed to get a ration
card in his name showing the petitioner’s address by making
false representations and producing false documents. Petitioner
complained before the Vigilance. The enmity increased and the
respondents 2 and 3 used some goondas. There is allegation of
trespass by respondents 2 and 3. Petitioner filed Ext.P1 petition
addressed to the Deputy Superintendent of Police and that was
given to the first respondent for which an acknowledgment card
WPC.14195/2010 Y 3
is given. Eliciting no response, this Writ Petition is filed.
3. A Counter Affidavit is filed by respondents 2 and 3.
Therein, it is, inter alia, stated as follows:
The second respondent’s mother was a Hindu. His father
was forced to leave his parental home, since he married a Hindu
lady. The matrimonial relationship between his parents did not
last long. The second respondent was only two years old when
his parents parted. His grand parents came to his rescue and
they looked after him and his younger brother. Ever since then,
himself and his younger brother had been residing in the
parental home and his brother is no more. The second
respondent married the third respondent and is living with his
family in his parental home having building Nos. IX/115 and
IX/116 which is situated in seven cents of property. The
petitioner was a permanent resident of Pathanapuram and is now
with the help of one of her sisters claiming that the one portion
of his parental house belonged to her and she had filed a Suit as
WPC.14195/2010 Y 4
OS.No.547/2005. The Suit was earlier listed for trial on
4.1.2008 and it was dismissed for default. Thereafter, a petition
was filed on 20.5.2009 after a delay of one year, four months
and 17 days. It is stated that the petitioner is harassing the
second respondent (submits the learned counsel for the second
respondent) by peeping into the private life of the second
respondent, with the aid of her younger sister. It is stated that a
complaint was filed by the petitioner alleging that the ration
card which is possessed by the second respondent is forged.
Based on the said complaint, an enquiry was conducted and the
allegations levelled against the second respondent were found to
be false. Dissatisfied with this, the petitioner made an attempt
to establish that the second respondent is not residing in the
residential building in question. On the basis of one such
complaint on 6.10.2007, the Municipal Secretary conducted an
enquiry and prepared Ext.R2(b) Report which clearly showed
that the one single building is having separate building numbers.
WPC.14195/2010 Y 5
Thereafter, the second respondent sent a representation to the
Secretary of the Municipal Council, Pathanamthitta vide Ext.R2
(c). Ext.R2(d) is a representation sent to the Chief Secretary,
Government of Kerala. Ext.R2(e) is the acknowledgment card.
It is stated that the petitioner has approached this Court with
unclean hands. It is also stated that there is nothing to show that
Police have not discharged their duty.
4. A Reply Affidavit is filed producing Exts.P3 to P12.
Ext.P3 is the Written Statement filed by the father of the second
respondent. Ext.P4 is the copy of the FIR on the basis of the
complaint of the petitioner. There was inaction. Petitioner
filed Ext.P5 before the Superintendent of Police,
Pathanamthitta. It is stated that the Deputy Superintendent of
Police told that it is only an interim order. Second respondent
is the local leader of DYFI having immense influence. The
Secretary of the Panchayat cancelled the Certificate issued to the
second respondent. Ext.P6 is the letter produced in this regard.
By Ext.P7, the Secretary informed the Taluk Supply Officer that
WPC.14195/2010 Y 6
the second respondent is not a resident of IX/116. The District
Collector, Pathanamthitta directed the Taluk Supply Officer to
cancel the Ration Card issued, vide Ext.P8. Petitioner was
informed by Ext.P9 that vide Ext.P8, the ration card issued to
the second respondent has been cancelled. Ext.P10 is a report in
a Newspaper produced to show that the second respondent
trespassed into the Secretary’s Office with certain anti-social
elements and restrained the Secretary and abused him on
coming to know about the cancellation. It is stated that the
political party leaders disowned the responsibility stating that
neither the DYFI nor the CPM has any say in the matter.
Ext.P11 is the copy of the complaint. Ext.P12 is the FIR.
5. Still later, the petitioner has produced Exts.P13 to
P19. It is stated that since three families are residing, there are
three door numbers, namely 9/114, 9/115 and 9/116. It is stated
that the petitioner came into possession, title and ownership by
Document No.368/1994 dated 29.1.1994. Earlier, the father of
the petitioner had executed document No.1053 of 1988
WPC.14195/2010 Y 7
regarding two cents of property and later by Ext.P13, the same
was sold to the father of the second respondent. The father and
mother were residing in the petitioner’s portion till their death.
Her father expired in 1995 and mother expired in 2009. They
were being maintained by the petitioner. It is stated that even
after her marriage, she used to go and reside in the said portion
and two or three days, she used to go to her husband’s residence
at Pathanapuram. When there was threat and disturbance, the
petitioner filed OS.No.547/2005. Actually, the prayer in the
same was a decree for fixation of boundary and consequential
relief. Ext.P16 is the injunction order which was not challenged
and no petition was filed to vacate that order. Ext.P17 is the
copy of the relevant page of the ration card. It is stated that the
mother of the second respondent is the first wife of her brother
Ninar Sahib and she is residing at Chittar Panchayat and the
second respondent also is residing with her. It is stated that the
petitioner is the lawful owner in title and possession of 2 and >
cents of land in the portion of the building. There is no
WPC.14195/2010 Y 8
challenge or dispute to her title, ownership or possession till
date. It is stated that Ext.P19 is the communication of the
District Collector.
6. We heard the learned counsel for the petitioner, learned
counsel appearing for respondents 2 and 3 as also the learned
Government Pleader.
7. Parties reiterate their pleadings. It is pointed out by the
petitioner that going by the Written Statement of the father of
the second respondent, he does not appear to have any objection
in the Suit being decreed. We have already extracted the prayer.
There is a Suit pending. The Suit had been filed quite some
time ago and the prayer in the Suit was apparently based on the
document of the year 1994 and what was sought was fixation of
boundary and ancillary reliefs. The Suit was, however,
dismissed for default and the Application for restoration was
filed in 2009 by the petitioner and subsequently it stands
restored. It is true that there was an order of injunction which,
of course, was an ex parte order. But, with the dismissal of the
WPC.14195/2010 Y 9
Suit, the order also was eclipsed. It may be that upon the
restoration of the Suit, the interim order may have revived. We
are of the view that in a Writ Petition where the relief sought is
to grant protection for peaceful residence, partaking of a
pronouncement of this Court on property rights, when the rights
are actually pending adjudication in the civil court, it may not be
very appropriate that this Court should grant protection as
sought for. The interim order, as we have already noted, even if
it has come back to life upon the restoration of the Suit,
continues to be an ex parte order. Of course, the petitioner has
every right to seek relief before the civil court in accordance
with law.
8. Learned counsel for respondents 2 and 3 would submit
that there will be no threat as against the life of the petitioner.
We record the submission. We further direct that in case there
is any threat to the life of the petitioner, it is open to the
petitioner to approach the first respondent to ensure that her life
is protected. As far as the prayer as sought in the Writ Petition
WPC.14195/2010 Y 10
is concerned, we relegate the petitioner to approach the civil
court for appropriate relief.
The Writ Petition is disposed of as above.
Sd/=
K.M. JOSEPH,
JUDGE
Sd/=
M.L. JOSEPH FRANCIS,
JUDGE
kbk.
// True Copy //
PS to Judge