Allowed

Joseph S/O. Kurian v. Damodaran and 5 Others

Kerala HC9 Mar 2011WP(C)/4778/2011

Case brief

AI extract

What is this about?

The Court allowed a writ petition seeking police protection for the petitioner to remove an Anjily tree from his property. Civil courts had previously held the tree belonged to the petitioner, but respondents obstructed its removal. The Court directed police officials to ensure removal despite objections.

What did the court decide?

Respondents 4 and 5 directed to afford police protection for the petitioner to remove the Anjily tree against objections raised by respondents 1 to 3.

Joseph S/O. Kurian Vs Damodaran and 5 Others — Property and Title | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN

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WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 WP(C).No. 4778 of 2011(V)

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--------------------------------

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PETITIONER(S): --------------------

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JOSEPH, S/O. KURIAN, AGED 78 YEARS, RESIDING AT ATTUPURATH HOUSE, PURAPPUZHA, VAZHITHALA P.O., THODUPUZHA.

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BY SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE ADVS. SRI.A.S.SAJUSH PAUL SRI.BOBBY THOMAS SRI.M.L.JISHNU SRI.TONY THOMAS

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RESPONDENT(S):

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--------------------

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1. DAMODARAN, S/O. KESAVAN,MATTATHIL HOUSE, PURAPPUZHA P.O., THODUPUZHA,PIN - 685 583.

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2. KUMARAN, S/O. NARAYANAN, VALAMTHADATHIL HOUSE, CHOORELLOOR, PURAPPUZHA P.O., THODUPUZHA - 685 583.

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3. GOPI, S/O. GOPALAN, PADATH HOUSE, CHOORELLOOR, PURAPUZHA P.O., THOPDUPUZHA - 685 583

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4. THE SUB INSPECTOR OF POLICE,KARIMKUNNAM POLICE STATION,KARIMKUNNAM P.O.,THODUPUZHA - 685 586.

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5. THE ASST. SUPERINTENDENT OF POLICE, OFFICE OF THE ASST. SUPERINTENDENT OF POLICE,THODUPUZHA - 685 584.

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6. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETRIAT, TRIVANDRUM - 695 001.

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R2 &3 BY ADV. SRI.LIJI.P.VADAKEDOM R4 TO R6 BY GOVT.PLEADER SRI.T.K.VIPINDAS

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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svs

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R. BASANT & K. SURENDRA MOHAN, JJ.

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------------------------------------------------W.P.(C) No. 4778 of 2011-V

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------------------------------------------------Dated this the 9^th day of March, 2011

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JUDGMENT

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Basant,J.

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The petitioner has come to this Court with this petition for issue of directions under Art.226 of the Constitution to respondents 4 and 5 - police officials, to afford protection to the petitioner for the removal of an Anjily tree standing in his property over which he has undisputed rights.

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According to the petitioner, the Anjily tree stands in

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the property which was assigned in favour of the father of the petitioner. After the death of the father of the petitioner, by partition, the land including the Anjily tree was allotted to the petitioner. There were disputes between the 1^st respondent and the petitioner and the bone of contention, inter alia, was the rights over this specific Anjily tree. Civil courts, in the suit filed

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W.P.(C) No. 4778 of 2011 -: 2 :-

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by the petitioner as well as in the suit filed by the 1^st respondent, have categorically held that the Anjily tree belongs to the petitioner. Both civil litigations initiated by the petitioner and the 1^st respondent had come to termination with the orders of this Court in the Second Appeal. In spite of this, the 1^st respondent is raising objections against the removal of the tree by the petitioner. Obviously realising his predicament in view of the decrees of the civil court he is now pitching on support from respondents 2 and 3 to implement his design of obstructing the removal of tree by the petitioner.

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Respondents 2 and 3 had filed a civil suit and obtained interim injunction. Subsequently, the petitioner had entered appearance in that suit. The order of injunction has been vacated. In spite of this, illegal obstruction by respondents 1 to 3 was continuing. Respondents 4 and 5 are guilty of inaction. It is, in these circumstances, that the petitioner has come to this Court seeking issue of directions under Art.226 of the Constitution.

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When this petition came up for hearing on 16/2/2011, notice before admission was ordered. All respondents have been served. Respondents 2 and 3 have entered appearance through counsel. Respondents 4 to 6 are represented by the

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W.P.(C) No. 4778 of 2011 -: 3 :-

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learned Government Pleader. There is no appearance for the 1^st respondent.

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As directed by the Bench on 21/2/2011, the learned Government Pleader has taken instructions. The learned Government Pleader makes categoric assertion that the State has no claim over the Anjily tree.

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Respondents 2 and 3 were asked to explain the nature of their claim. The short contention of the learned counsel for respondents 2 and 3 is that the tree belongs to the Government and that is why they think that the petitioner is not entitled to remove the tree.

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There is no civil dispute involved. Respondents 2 and 3 assert that the tree belongs to the State. The learned Government Pleader, on behalf of the State, clearly asserts that the State has no claim over Anjily tree. Respondents 2 and 3 are unable to sustain their alleged objection against removal of Anjily tree by the petitioner. There is no civil dispute involved. The petitioner complains of wanton, illegal and unlawful obstruction by respondents 1 to 3.

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We are satisfied that when considering the nature of the stand taken by the learned Government Pleader, on behalf of the State, and the nature of the only objection raised by respondents

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W.P.(C) No. 4778 of 2011 -: 4 :-

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2 and 3, the prayer in this writ petition can be allowed and appropriate directions can be issued. We did suspect collusion between the petitioner and respondents 1 to 3. But in the light of the categoric stand taken by the learned Government Pleader that suspicion was found to be unjustified.

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In the result:

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(a) This writ petition is allowed.

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(b) Respondents 4 and 5 are directed to afford police

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protection for the petitioner to remove the Anjily tree in question against any objections that respondents 1 to 3 may raise against such removal.

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(c) We make it clear that the petitioner shall have to comply with all the requirements of law before the tree is removed and this judgment will not in any way clothe the petitioner to claim exemption from any other requirement of law.

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(d) We make it clear that this judgment is limited against illegal obstructions which respondents 1 to 3 may raise.

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Sd/R. BASANT (Judge)

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Sd/K. SURENDRA MOHAN (Judge)

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Nan/

Joseph S/O. Kurian v. Damodaran and 5 Others

Case brief

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Joseph S/O. Kurian v. Damodaran and 5 Others

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