IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22156 of 2008(K)
1. P.K. ALEX, S/O. LATE KOSHY,
... Petitioner
Vs
1. THE DISTRICT SUPERINTENDENT OF
... Respondent
2. THE CIRCLE INSPECTOR OF POLICE,
3. THE SUB INSPECTOR OF POLICE,
4. K. JACOB, S/O.LATE KOSHY,
For Petitioner :SMT.MINI.S.DAS
For Respondent :SRI.S.B.PREMACHANDRA PRABHU
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :13/11/2008
O R D E R
K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ.
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W.P.(C)No.22156 OF 2008 K
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DATED THIS THE 13th DAY OF NOVEMBER, 2008
J U D G M E N T
Balakrishnan Nair, J.
The petitioner claims ownership and possession over 5.98
acres of land in Channappetta Village, Pathanapuram Taluk. The
4th respondent is his brother. He claims possession and right
over a portion of that property. He, along with his wife, has filed
O.S.No.399/03 before the Munsiff’s Court, Punalur seeking an
injunction against the petitioner. The Munsiff’s Court granted an
order of status quo. The petitioner submits, a portion of the
petitioner’s property is also shown as part of the plaint schedule
items. When the order of status quo was in force, the 4th
respondent trespassed into his property, abused him and
committed mischief on 10.4.2008. Based on the information
lodged by the petitioner, Yeroor Police has registered Crime
No.165/08 for the offences under Section 448, 294(b) and 427 of
the Indian Penal Code. Exhibit P2 is the FIR in that case. Again
the 4th respondent trespassed into the property on 11.6.2008 and
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caused extensive damages to the wire fencing and the rubber
trees and based on the complaint filed by the petitioner, the
police registered Exhibit P3 crime against the 4th respondent for
the offences under sections 447 and 427 of Indian Penal Code.
The petitioner apprehends danger to his life from the 4th
respondent. So, he has preferred Exhibit P4 representation dated
12.4.2008 before the Circle Inspector of Police and Exhibit P5
representation dated 17.4.2008 before the Sub Inspector of
Police. Alleging that the police did not take any action to protect
his life, this Writ Petition is filed.
2. The learned Government Pleader upon instructions
submitted that both sides have flooded the Police Station with
complaints and apart from the two crimes registered against the
4th respondent, a crime has been registered against the petitioner
also. The same involves offences under sections 324 and 326
also. The victim of the petitioner’s attack was the rubber tapper
employed by the 4th respondent.
3. The 4th respondent has filed a counter affidavit denying
all the allegations of the petitioner. In fact in violation of the
W.P.(C)No.22156/08 -3-
status quo order, the petitioner has modified the boundary of his
property making encroachment into the said respondent’s
property. In the suit, the 4th respondent has filed an application
to prosecute the petitioner for violation of the interim injunction
order. The Commissioner appointed by the Civil Court has found
that pending suit, after the passing of the injunction order, the
petitioner has modified the boundary. To wriggle out of the
consequences of the violation of the injunction order, this Writ
Petition is filed, seeking police protection, it is submitted.
4. The dispute between the brothers is a dispute
regarding immovable properties. The same has to be resolved by
the civil court. If the 4th respondent has trespassed into the
petitioner’s property, his remedy lies before the civil court. The
police cannot go into the alleged violation of the injunction order
and take remedial action. The police are not under any duty of
the petitioner in this regard. In the absence of any breach of
duty, this Court cannot invoke its jurisdiction under Article 226 of
the Constitution of India, to issue a writ of mandamus to the
police. In view of the above position, no relief could be granted
W.P.(C)No.22156/08 -4-
to the petitioner and the Writ Petition is accordingly dismissed. It
is made clear that we have not expressed any opinion regarding
the disputed facts raised by both sides before us. The civil court
concerned will be free to take appropriate decision in the matter
pending before it, uninfluenced by this judgment.
K.BALAKRISHNAN NAIR, JUDGE.
M.C.HARI RANI, JUDGE.
dsn