Kerala High Court
Ponnamma K Joy Aged 57 Years vs The Asst.Commissioner Of Police on 19 January, 2016
Author: Ashok Bhushan
Bench: Ashok Bhushan, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937
WP(C).No. 36332 of 2015 (N)
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PETITIONER(S):
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PONNAMMA K JOY AGED 57 YEARS
W/O. THOMAS K. JOY, MULAMOOTTIL HOUSE
PUTHUPPALLY P.O., PUTHUPPALLY VILLAGE, KOTTAYAM TALUK
KOTTAYAM DISTRICT, NOW RESIDING AT 14904, DONNA DRIVE
SILVER SPRING, MD 20905, U.S.A.
BY ADVS.SRI.REJI GEORGE
SRI.BINOY DAVIS
SMT.SIJI JOY
RESPONDENT(S):
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1. THE ASST.COMMISSIONER OF POLICE
THRIKKAKARA POLICE STATION, KAKKANAD
ERNAKULAM - 683 020.
2. THE SUB INSPECTOR OF POLICE
THRIKKAKARA POLICE STATION, KAKKANAD
ERNAKULAM - 682 030.
3. SANTHOSH KUMAR P.K
S/O. KUMARAN, KARIPPAMOOLAYIL, KOLLAMKUDIMUGAL
B.M.C P.O - 682 021.
4. LEELA
W/O. RAGHAVAN, KARIPPAMOOLAYIL, KOLLAMKUDIMUGAL
B.M.C PO - 682 021.
R3,R4 BY ADV. SRI.VARGHESE C.KURIAKOSE
BY SR GOVERNMENT PLEADER SRI.C.R.SYAMKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-01-2016,
THE COURT ON 19-01-2016 DELIVERED THE FOLLOWING:
WP(C).No. 36332 of 2015 (N)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 - A TRUE COPY OF THE BASIC TAX RECEIPT OF THE 36.30 ARES OF PROPERTY IN
RE-SY.NO. 523/4 DT. 23.09.2015 ISSUED BY THE VILLAGE OFFICER, KAKKANAD.
P1(A) - TRUE ENGLISH TRANSLATION OF EXT. P1
P2 - A TRUE COPY OF THE POSSESSION CERTIFICATE OF THE 36.30 ARES OF
PROPERTY IN RE-SY NO. 523/4 DT. 24.11.2015 ISSUED BY THE VILLAGE OFFICER,
KAKKANADU.
P2(A) - TRUE ENGLISH TRANSLATION OF EXT. P2.
P3 - A SKETCH SHOWING THE LIE OF THE PROPERTIS BELINGING TO THE
PETITIONER AND HER HUSBAND.
P4 - A TRUE COPY OF THE JUDGMENT PASSED BY THE HON'BLE 2ND ADDL. SUB
COURT, ERNAKULAM IN OS NOS. 79 & 80 OF 2009 DT. 17.06.2009.
P5 - A TRUE COPY OF THE JUDGEMENT PASSED BY THE HON'BLE 2ND ADDL. SUB
COURT, ERNAKULAM IN OS NO. 81/2009 DT. 07.07.2012.
P6 - A TRUE COPY OF THE COMPLAINT DT. 09.11.2015 FILED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT.
P7 - A TRUE COPY OF THE COMPLAINT DT. 09.11.205 FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
RESPONDENT(S)' EXHIBITS
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EXT.R4(a): TRUE COPY OF THE PLAINT IN OS NO.79/09.
EXT.R4(b): TRUE COPY OF THE FRESH JUDGMENT IN OS NO.79/09.
EXT.R4(c): TRUE COPY OF THE REFERENCE ORDER DT 20.7.2015.
EXT.R4(d): TRUE COPY OF THE PLAINT IN OS NO.199/2010 ON THE FILES OF SUB
COURT, ERNAKULAM.
EXT.R4(e): TRUE COPY OF THE ORDER DT 12.6.2003 IN MHOP NO.2/2000 PASSED
BY THE HON'BLE DISTRICT JUDGE, ERNAKULAM.
Rp
//True Copy//
P.S to Judge
ASHOK BHUSHAN, C.J.
&
A.M. SHAFFIQUE, J.
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W.P. (C) No. 36332 of 2015
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Dated this, the 19th day of January, 2016
J U D G M E N T
Shaffique, J.
This writ petition is filed by the petitioner seeking police protection to the petitioner and her workers to construct a compound wall in respect of 30 cents of property comprised in Re.Sy.No.523/4 (Old.Sy.No.539/1/A) of Kakkanad Village.
2. Facts involved in the writ petition would disclose that the petitioner and her husband purchased a total extent of 89.680 cents of property made up of 59.680 cents in Sy.No.539/1/B2 and 30 cents in the aforesaid survey number as per sale deed dated 30/9/1994. It is contended that the two items of property are very well demarcated with distinct boundaries and are lying as two different plots adjacent to each other. Petitioner has produced the tax receipt, possession certificate and also a rough sketch showing the nature and lie of the property. It is submitted that the petitioner and her husband had filed OS Nos.80/09 and 81/09 W.P(C) No.36332/15 -:2:- against respondents 3 and 4 and one late Sri.Raghavan, husband of the 4th respondent. OS No.80/09 was filed seeking a permanent prohibitory injunction restraining the defendants from demolishing the compound wall of the property having an extent of 20 cents and OS No.81/09 was filed in respect of 10 cents of property seeking for cancellation of sale deed No.1912/2007 executed by the petitioner and her husband in favour of the 3rd respondent. Both the suits were decreed in favour of the petitioner and her husband. Exts.P4 and P5 are the judgments. According to the petitioner, though an appeal was filed against the judgment in OS No. 81/09, the same came to be dismissed and therefore the decree had become final. The petitioner and her husband again filed OS No.79/09 before the Sub Court, Ernakulam in respect of another 16 cents of property seeking recovery of possession under Section 6 of the Specific Relief Act which was also decreed in their favour. However, Civil Revision No.246/13 has been filed by respondents 3 and 4 before this Court and the said matter is pending.
3. Petitioner contends that since she and her husband are working in USA, they require to construct a proper compound wall W.P(C) No.36332/15 -:3:- for the property. As far as the 59.680 cents of property is concerned, it is protected by constructing a compound wall. But in so far as the 30 cents of property is concerned, though a foundation was constructed, respondents 3 and 4 attempted to demolish the same. It is at that point of time that OS No.80/09 was filed, which resulted in the decree. In order to complete the construction of the compound wall, petitioner engaged a contractor but when the contractor went to the property, respondents 3 and 4 had abused him and threatened him with dire consequences if he attempted to construct the compound wall as instructed by the petitioner and her husband. Thereafter, the petitioner reached Kochi on 21/10/2015 and again attempted to start the work through the contractor. But respondents 3 and 4 forcefully threatened the contractor and his workers and their tools and equipments were damaged. Under the fear of life and being manhandled, the contractor as well as the workers left the site. According to the petitioner, respondents 3 and 4 have no right in respect of the aforesaid 30 cents of land which is clearly reflected in the judgments in favour of the petitioner and her husband. Though complaints were given to the 1st and W.P(C) No.36332/15 -:4:- respondents seeking for police protection to enable the petitioner and her husband to construct the compound wall in the property belonging to them and since no action was taken in the matter, this writ petition is filed.
4. Counter affidavit has been filed by respondents 3 and 4 in which it is stated that the claim of ownership and possession in respect of the property is legally and factually unsustainable. According to respondents 3 and 4, petitioner had not obtained any right or interest in the property. It is alleged that the property having an extent of 80.750 cents was in the absolute ownership and possession of late Raghavan and after his death, it devolved on respondents 3 and 4. It is stated that during the lifetime of Raghavan, he had not executed any sale in favour of any person. After the demise of Raghavan's mother Chakku, he started showing some sort of depression and he was keeping away from his relatives. It is stated that Sale deed No.2298/1994 is not executed by Raghavan. It is submitted that when it was found that Raghavan had not executed any documents nor received any consideration, to purchase peace, 3rd respondent agreed to transfer the ownership in the name of the petitioner in his favour. W.P(C) No.36332/15 -:5:- Accordingly, an agreement was executed between Thomas K.Joy and the petitioner along with the 3rd respondent. Though sale agreement was executed, possession of property still remains with the respondent and late Raghavan. It is also stated that Gowri, sister of Raghavan, filed MHOP No.555/2007 stating that Raghavan is a mentally ill person suffering from schizophrenia and sought for appointment of a guardian. It is therefore submitted that the property could have been dealt with only subject to the outcome of the said case and this fact had been informed to the petitioner and her husband. It is stated that the petitioner and her husband was residing in the shed constructed on the property which is the subject matter of the writ petition and they were not at all in possession of the property after execution of the deed. It is stated that when CRP No.246/2013 is pending, there is no reason why a different view should be taken by this Court in the matter. It is stated that the respondents are in possession of the property. That apart, Gowri has filed a suit for partition as OS No.199/2010, which is pending before the Sub Court. The right of the petitioner will always be subject to the decision in the said partition suit. It is also stated that orders had W.P(C) No.36332/15 -:6:- been passed by the District Court in MHOP No.2/2000 adjudging Raghavan as a mentally ill person.
5. Heard the learned counsel for the petitioner, learned counsel appearing on behalf of respondents 3 and 4 and the learned Government Pleader.
6. Having regard to the aforesaid factual issues involved in the matter, though disputes have been raised regarding possession of the property, a perusal of the judgment in OS No. 80/2009 would show that the plaint schedule property is having an extent of 20 cents in Sy.No.539/1/A and the decretal portion reads as under;
"4) The defendants are restrained by a prohibitory injunction from removing foundation of the compound wall of the plaint schedule property, committing acts of waste therein and interfering with the peaceful possession and enjoyment of the plaint schedule property and obstructing the plaintiff from using 20 links wide road on the southern side of the plaint schedule property as access to the plaint schedule property.
5) The plaintiffs are entitled to recover cost of both suits from the defendants."
The defendants in the said suit are respondents 3, 4 and W.P(C) No.36332/15 -:7:- Raghavan. OS No.81/2009 is filed for setting aside a document and cancellation of mutation. The plaintiffs are the petitioner and her husband and the 3rd respondent is the defendant. The plaint schedule is 10 cents of property adjacent to the 20 cents belonging to them purchased as per sale deed No.2299/1994 of SRO, Thrikkakkara. The decretal portion reads as under;
"In the result, the suit is decreed as follows:-
1) Sale deed No:1912/2007 dated 13/4/2004 of SRO Thrikkakkara is set aside.
2) Mutation of the plaint schedule property in favour of the defendant is cancelled.
3) The plaintiff is allowed to recover the costs of the suit from the defendant and his assets.
4) Forward an authenticated copy of this decree to the Sub Registrar concerned, as required under Section 89(5) of the Registration Act for necessary action."
7. OS No.79/09 is filed for recovery of possession of plaint schedule property having an extent of 16 cents in Re.Sy.No.523/5. The suit had been decreed against the defendants, the decretal portion of which reads as under;
W.P(C) No.36332/15 -:8:-
"1) The defendants are directed to put the plaintiffs in possession of the plaint schedule property within two months.
2) The defendants are directed by a mandatory injunction to remove the temporary shed put up in the plaint schedule property and to restore the basements of the compound wall with granite on the boundaries, within two months, failing which the plaintiffs can enforce the decree and recover expenses.
3) The defendants are restrained by a prohibitory injunction from committing acts of waste and causing obstruction to the peaceful possession and enjoyment of the plaint schedule property and use of 20 links wide pathway provided as access to the plaint schedule property."
8. In the writ petition, it is stated that the petitioner intends to construct a compound wall in respect of 30 cents of property comprised in Re.Sy. No.523/4 (Old Sy.No.539/1/A). The right to property is based on sale deed No.2299/1994. The averments indicate that out of this 30 cents, the petitioner and her husband transferred 10 cents of property to the 3rd respondent as per sale deed No.1912/2007. The suit was filed to declare the said sale deed as void ab initio and the suit had been decreed as stated above. The said sale deed No.1912/2007 has W.P(C) No.36332/15 -:9:- since been set aside by the said judgment.
9. In the counter affidavit, respondent 3 and 4 have stated that judgment in OS No.79/09 has been set aside and separate trial was conducted in OS No.79/09. Ext.R4(b) is the judgment dated 7/7/2012 and direction had been issued by decreeing the suit as under;
"In the result, the suit is decreed as follows:-
1) The defendants 1 and 3 are directed by a mandatory injunction to restore possession of the plaint schedule property to the plaintiffs within a period of 2 months from today, after dismantling and removing the shed constructed therein.
2) In case the defendants 1 and 3 fail to comply the above direction, the plaintiffs could recover possession of the plaint schedule property after dismantling and removing the shed constructed therein, and realise the expense from the defendants 1 and 3.
3) Defendants 1 and 3 are restrained by a permanent prohibitory injunction from trespassing in the plaint schedule property and interfering with the plaintiff's peaceful possession and enjoyment of the same.
4) The plaintiffs are also allowed to recover the costs of the suit from the defendants 1 and 3."
10. It is stated that challenging the aforesaid judgment, W.P(C) No.36332/15 -:10:- CRP No.246/2013 has been filed and the matter has been referred to a Division Bench for consideration. It is therefore argued that when such issues are pending consideration and a partition suit is pending by which a claim has been made by sister of late Raghavan and Raghavan has been declared as a mentally ill person as per order dated 12/6/2003 in MHOP No.2/2000, the sale deed in favour of the petitioner and her husband is not liable to be acted upon and therefore, the writ petition deserves to be dismissed.
11. As far as judgment in OS No. 79/09 is concerned, it relates to another item of property having an extent of 6.48 Ares (16 cents) in Re.Sy.No.523/5 obtained by the petitioner and her husband as per sale deed No.2298/94. In this writ petition, the petitioner claims right and possession only in respect of the property having an extent of 30 cents and that too in Re.Sy.No.523/4 (Old Sy.No.539/1/A). In respect of 20 cents, the issue is covered by the judgment in OS No.80/09 and in respect of 10 cents, OS No.81/2009. These judgments have become final. Under such circumstances, as matters stand now, respondents 3 and 4 cannot stake any claim in respect of the 30 cents of land for W.P(C) No.36332/15 -:11:- which the petitioner wants to construct a boundary wall. They cannot claim either title or possession and they were parties to the lis in both the cases.
12. In regard to the contention that late Raghavan was mentally ill and whether the entire property is to be partitioned as claimed in the suit OS No.199/2010 are matters which need not be considered at this stage as long as the suit is not decreed. That apart, petitioner or her husband are not parties to the said suit. There is no injunction restraining them from possessing the said property.
13. Therefore, as matters stand now, respondents 3 and 4 have no right to obstruct the possession and enjoyment of the aforesaid 30 cents of property belonging to the petitioner till a different view is taken by a civil court in appropriate proceedings. Hence, we are of the view that the request of the petitioner is justified.
14. It is further stated that the boundaries are well demarcated as basement was constructed. There is an injunction restraining respondents 3 and 4 from entering into the said property having an extent of 20 cents and the title deed in W.P(C) No.36332/15 -:12:- respect of 10 cents had been declared void. In the result, if there is any physical obstruction from respondents 3 and 4 or their men, at the request of the petitioner, police is bound to provide necessary police protection for constructing the compound wall.
15. In the result, this writ petition is disposed of as under; The 2nd respondent shall provide adequate protection to the petitioner and her workers to construct the compound wall in respect of 30 cents of property in Re.Sy.No.523/4 (Old Sy.No.539/1A) of Kakkanad Village and ensure that no obstruction is caused by respondents 3 and 4 or their men.
Sd/-
ASHOK BHUSHAN, CHIEF JUSTICE Sd/-
A.M. SHAFFIQUE, JUDGE Rp //True Copy// PS to Judge