Disposed

Elizabeth Chacko v. Thomas Mathew @ Babu

Kerala HC23 Sept 2020WP(C)/15125/2020

Case brief

AI extract

What is this about?

The High Court of Kerala granted police protection to an elderly woman facing threats in a property/road dispute. The court directed the police to visit her home monthly if requested and recorded an undertaking by the neighbours.

What did the court decide?

Direction to respondents 5-7 to afford protection; undertaking by respondents 1-4 not to cause harm; order for monthly police visits upon request.

Elizabeth Chacko Vs Thomas Mathew @ Babu — Civil Procedure and Limitation | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942

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WP(C).No.15125 OF 2020(M)

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PETITIONER:

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ELIZABETH CHACKO, AGED 78 YEARS, W/O.CHACKO KUNNUMPURATH THOMAS (LATE), THANKAGIRI HOUSE, KANAKAPALAM P.O., ERUMELY VILLAGE, ERUMELY, KOTTAYAM, PIN-686509.

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BY ADVS.

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SRI.M.P.MADHAVANKUTTY SHRI. SHIJOY JOHN MATHEW

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RESPONDENTS:

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1 THOMAS MATHEW @ BABU, AGED 71 YEARS, THEVARIMANAKU PUTHEN VEEDU, NEERUMPLACKAL, KANAKAPALAM P.O., ERUMELY VILLAGE, ERUMELY, KOTTAYAM, PIN-686509.

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2 PHILIPOSE MATHEN, AGED 75 YEARS, NEERUMPLACKAL, KANAKAPALAM P.O., ERUMELY VILLAGE, ERUMELY, KOTTAYAM, PIN-686509.

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3 BLESSON PHILIP, AGED 40 YEARS, S/O.PHILIPOSE MATHEN, NEERUMPLACKAL, KANAKAPALAM P.O., ERUMELY VILLAGE, ERUMELY, KOTTAYAM, PIN-686509.

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4 GEORGEKUTTY, AGED 73 YEARS, NEERUMPLACKAL, KANAKAPALAM P.O., ERUMELY VILLAGE, ERUMELY, KOTTAYAM, PIN-686509.

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5 STATION HOUSE OFFICER, ERUMELY POLICE STATION, KOTTAYAM DISTRICT, PIN-686002.

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6 SUB INSPECTOR OF POLICE, ERUMELY POLICE STATION, KOTTAYAM DISTRICT, PIN-686002.

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WP(C).No.15125 OF 2020

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7 DISTRICT POLICE CHIEF, KOTTAYAM, PIN-686001.

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R1-4 BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX SRI.MANU SANKAR P.

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SRI K.P HARISH, SR GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.15125 OF 2020

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JUDGMENT

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The petitioner is a septuagenarian and she is living alone. The 1st respondent is her neighbour and he is residing on the northern side of the property of the petitioner herein. The respondents 2 to 4 are his associates. The petitioner has approached this Court seeking a direction to the respondents 5 to 7 to afford protection to the person and property of the petitioner from threats by the respondents 1 to 4.

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The petitioner contends that there is a road having a width of about 12 feet and lying North-South, commencing from the Panchayat road which lies on the southern side of the property of the petitioner, leading to her property. The 1st respondent resides further to the North of the property of the petitioner and the above road leads to his house as well. The road portion up to the house of the petitioner has been tarred and the portion towards North leading to the house of the 1st respondent is lying as a mud road. According to the petitioner, the road belongs absolutely to her and when the 1st respondent attempted to make alterations, she approached the Court of the Munsiff, Kanjirappally and instituted O.S.No.340 of 2019. The learned Munsiff after evaluating the facts passed an order of interim injunction restraining the 1st respondent herein from altering the present lie, nature and width of the road until further orders. Despite interdictory orders passed by the learned Munsiff, when respondents 1 to 4

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WP(C).No.15125 OF 2020

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persisted with the illegal acts, the petitioner herein approached the 5th respondent and submitted Ext.P4 representation. However, no action was taken. It is in the above fact scenario that she has approached this Court seeking an order of police protection and also to restrain respondents 1 to 4 from causing her any harm.

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The respondent No.1 has filed a counter-affidavit. In his counter, he has stated that he is also a senior citizen and a widower. According to the 1st respondent, the petitioner has misstated facts and none of her assertions are true. It is contended that the 1st respondent also accesses his property through the very same road which lies North-South on the western side of the property of the petitioner. The width of the road is about 12 meters and the right of usage of the road is mentioned in his title deed as well. Since the portion of road up to the property of the petitioner has been tarred by her, he approached her with a request to tar the remaining portion. However, the petitioner rejected his request. By giving a false narrative, she approached the Munsiff Court and instituted a suit for injunction. The 1st respondent has entered appearance before the Civil Court and he has raised a counterclaim to protect his user of the road. He submitted that a Commissioner Advocate was appointed by the Civil Court to ascertain the nature and lie of the property and the Commissioner, after visiting the property, has submitted Exhibit R1(b) report. It is contended that the respondents 1 to 4 have no intention to violate the order of the Civil Court or to cause any threat or obstruction to the petitioner. According to the respondent No.1, the petitioner, on the strength of the interim order is trying to obstruct the 1st respondent and his

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WP(C).No.15125 OF 2020

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workers and he is prevented from using the above road.

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A reply affidavit has been filed by the petitioner denying the contentions in the counter. However, it is admitted that the petitioner has a right of easement over the road in question.

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I have heard Sri. Shijoy John Mathew, the learned counsel appearing for the petitioner and Sri.Joseph P. Alex, the learned counsel appearing for the party respondents.

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The entire dispute centres around a road commencing from the southern Panchayat road and leading to the property of the petitioner as well as the 1st respondent. In the writ petition, the petitioner has asserted that the road belongs absolutely to her and that the 1st respondent is trying to make alterations. However, in the reply affidavit filed by the petitioner, she has admitted that the 1st respondent has a right to use the said road for accessing his property. The petitioner has approached the Civil Court and she has secured an order of injunction. Unless the same is varied, modified or set aside, the respondent No.1 will have no authority to alter the present lie nature and width of the road. The 1st respondent has asserted that he has no intention to violate the order of the Civil Court. At the same time, the petitioner will not be justified in causing any interference to the free user of the road by the 1st respondent, and other people who require to meet him or his employees. Both the parties shall be strictly bound by the orders of the Civil Court. Admittedly, the petitioner is living alone and neither the 1st respondent nor his associates or workers shall advance any threat or harass the lady. Sri.Joseph P Alex, the learned counsel

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WP(C).No.15125 OF 2020

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has undertaken before this Court that the party respondents are respectable citizens and they will not commit any act adverse to the petitioner or against law. The said submission is also recorded.

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If the petitioner has any grievance or if the respondents 1 to 4 violate the undertaking given by them before this Court, the petitioner shall intimate her grievance with the 7th respondent, who as the empowered officer under Rule 20 of the Kerala Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 shall give necessary instructions to the 6th respondent to ensure that her life and property is protected. It is also ordered that a representative of the 6th respondent shall visit the home of the petitioner at least once in a month if any request for assistance is received to ensure that she has no grievance.

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This writ petition is disposed of.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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sru

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WP(C).No.15125 OF 2020

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE REGISTERED WILL DATED 25.3.2014.

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EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER DATED 16.12.2019 BEFORE THE MUNSIFF'S COURT, KANJIRAPPALLY IN O.S.NO.340/2019.

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EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 25.4.2020 THROUGH E-MAIL TO THE STATION HOUSE OFFICER, ERUMELY POLICE STATION.

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EXHIBIT P4 TRUE COPY OF THE COMPLAINT DATED 8.7.2020 BEFORE THE STATION HOUSE OFFICER, ERUMELY POLICE STATION.

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EXHIBIT P5 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 16.5.2020 ISSUED BY THE MUTHOOT BRAIN AND SPINE CENTRE, KOZHENCHERRY. EXHIBIT P6 TRUE COPY OF THE COMPLAINT DATED 17.7.2020 TO THE 5TH AND 7TH RESPONDENT. EXHIBIT P7(A) (B) TRUE COPY OF THE PHOTOGRAPHS OF THE (C): DESTROYED KAYYALA AND DISPUTED HUMP AND DIP.

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RESPONDENTS EXHIBITS:

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EXHIBIT R1 A TRUE COPY OF THE OS.NO.340 OF 2019 ON THE FILES OF THE MUNSIFF'S COURT, KANJIRAPPILLY. EXHIBIT R1 B TRUE COPY OF THE COMMISSION REPORT IN OS.NO.340 OF 2019 ALONG WITH SKETCH. EXHIBIT R1 C TRUE COPY OF THE COUNTER CLAIM IN O.S.NO.340 OF 2019 ON THE FILES OF THE MUNSIFF'S COURT, KANJIRAPPILLY.

Elizabeth Chacko v. Thomas Mathew @ Babu

Case brief

What is this about?

What did the court decide?

Elizabeth Chacko v. Thomas Mathew @ Babu

Case brief

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What did the court decide?

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