In a partition decree enforcement dispute, the Court held that the matter is purely civil in nature. The petitioner must approach the civil court for an injunction against respondents before involving police. The writ petition was closed without issuing any order.
Petition closed without any order to the respondents.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY ,THE 14TH DAY OF DECEMBER 2018 / 23RD AGRAHAYANA, 1940
WP(C).No. 40733 of 2018
PETITIONER/S:
SHAREEFA
AGED 56 YEARS
W/O.KUNHIMUHAMMED, SHAHANAS MANZIL, TIRURANGADI AMSOM DESOM, MAMBURAM(PO), MALAPPURAM DISTRICT.
BY ADVS.
SRI.JAMSHEED HAFIZ SMT.T.S.SREEKUTTY
RESPONDENT/S:
1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO HOME AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
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5 ARIFA, AGED 53 YEARS, D/O.CHAKKIPATTU KUNHEEN, ERAMALAN THODIYIL HOUSE, PANAMPUZHA ROAD, TIRURANGADI(PO), PIN-676306, MALAPPURAM DISTRICT.
6 SHAHIDA, AGED 50 YEARS, D/O.CHAKKIPATTU KUNHEEN, ERAMALAN THODIYIL HOUSE, PANAMPUZHA ROAD, TIRURANGADI(PO), PIN-676306, MALAPPURAM DISTRICT.
OTHER PRESENT:
SRI P P THAJUDHEEN SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Ashok Menon, J.
The petitioner is the decree holder in a partition suit, O.S.No.426/2012, on the file of the Sub Court, Tirur. She obtained Ext.P1 preliminary decree and Ext.P2 final decree against the party respondents 5 and 6. Even though the party respondents appeared, they did not file any written statement or contest the suit. Ext.P3, E.P.No.45/2018, was filed for delivery of the property allotted to the petitioner. The Amin, who went to the spot for delivery, was resisted by the party respondents. The petitioner filed Ext.P4 E.A.No. 160/2018 in the E.P. seeking police assistance. That application was allowed and the property was delivered and boundaries were marked. But, despite that, the petitioner is not able to enjoy the fruits of the decree and the party respondents 5 and 6 and their men are continuing to prevent the petitioner from enjoying the property delivered to her. Ext.P5 complaint was filed before the 4th respondent by petitioner's husband. But no action has been taken so far. The fruits of the jack
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fruit tree standing in the property was sold, but the
petitioner could not pluck the fruits due to the threat
and intimidation of the party respondents. Ext.P6
complaint was filed before the 4th respondent. Yet no action has been taken. Therefore, the petitioner seeks interference of this Court by issuing a writ of mandamus directing respondents 3 and 4 to afford necessary,
effective and adequate protection to the life and property of the petitioner, so that she can enjoy the fruits of the decree obtained as per Ext.P2.
petitioner, the Senior Government Pleader and documents perused.
party respondents is purely civil in nature. The
petitioner is being prevented by the party respondents
from entering her property. It is only appropriate that
the petitioner approaches the civil court for an
injunction against the party respondents. Without
having done so, it is not feasible to involve the police
authorities in resolving a civil dispute. In case the petitioner is still being obstructed after obtaining
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orders of the civil court, it is for the civil court to
issue appropriate directions to the police authorities
to see that the decree obtained by the petitioner is effectively implemented and that she is able to enjoy the fruits of the decree. Without having resorted to any proceedings against the party respondents before the civil court, the petitioner cannot approach this Court under Article 226 of the Constitution for getting specific instructions to the police for implementing a civil decree obtained by her. Leaving open the remedy available to the petitioner to approach the civil court, this petition is closed. No order as to costs.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
ASHOK MENON
JUDGE
dkr
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF THE PRELIMINARY DECREE IN OS 426/2012 BEFORE THE SUB COURT TIRUR DATED 11.10.2013 EXHIBIT P2 COPY OF THE FINAL DECREE IN OS 426/2012 BEFORE THE SUB COURT TIRUR DATED 15.11.2016 EXHIBIT P3 COPY OF THE EP 45/2018 BEFORE THE SUB COURT, TIRUR DATED 29.08.2018 EXHIBIT P4 COPY OF THE EA 160/2018 IN EP 45/2018 BEFORE THE SUB COURT, TIRUR DATED 30.10.2018 EXHIBIT P5 COPY OF THE COMPLAINT FILED BEFORE THE 4TH RESPONDENT BY THE PETITIONER'S HUSBAND DATED 17.11.2018 EXHIBIT P6 COPY OF THE COMPLAINT FILED BY THE PETITIONER'S HUSBAND BEFORE THE 4TH RESPONDENT DATED 18.11.2018.
3 issues framed by the court
Whether the High Court can issue a writ of mandamus directing police to protect a decree holder's property in an ongoing civil dispute.
Whether civil disputes regarding possession and enforcement of decrees fall within the jurisdiction of the police or require prior civil court intervention.
Whether a petitioner must approach the civil court for an injunction before seeking writ relief for police protection in property possession cases.
Shareefa
The State of Kerala Represented By The Secretary To Home Affairs Department
The Superintendent Of Police Malappuram
The Deputy Superintendent Of Police Tirur
The Sub Inspector Of Police Tirurangadi
Arifa
K. Vinod Chandran
Ashok Menon
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
