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2000 DIGILAW 577 (KER)

Jnanadas v. Cicilet Balaraj

2000-11-02

P.K.IYER BALASUBRAMANYAN, T.M.HASSAN PILLAI

body2000
JUDGMENT P.K. Balasubramanyan, J. 1. The appellants in this appeal are not parties to O.P.No.24730 of 1999 filed before this court by respondent No.l herein. The Appellants sought for and obtained permission of this court as per order in C.M.P.No.6150 of 1999 to appeal against the judgment in O.P.No.24730 of 1999. 2. The first respondent herein filed the Original Petition impleading the Circle Inspector of Police and the Sub Inspector of Police, Neyyattinkara and one Rajesh, described as Convenor of Left Democratic Front Election Committee. The prayer in the Original Petition was for issue a writ of mandamus directing the police officers to provide adequate and effective police protection to the life of the petitioner and her family members to have free ingrees to and egress from the property having an extent of 5 cents in survey No. 167/57 l(R.S.No.125.6) of Kunnathukal Village. The first respondent herein, did not disclose in the Original Petition, what exactly was her tital over the property or the transaction on the basis of which she was claiming right and possession over the property. She averred that she had given permission to the third respondent in the Original Petition to put up a temporary shed in the property for the purpose of ensuing election and the shed was not being demolished by respondent No.3 even after the election and inspite of the need for the existence of the shed has ceased. When the first respondent herein attempted to dismantle the shed, she was prevented and threatened by respondent No.3 and his associates. According to the first respondent, she there upon made Ext.Pl, an undated representation before the police officers. It is interesting to notice that even in the Original Petition the date on which the said representation was made was not disclosed. 3. This court ordered notice by special messenger on 4.10.1999 and notice was served. On 8.10.1999, when the Original Petition came up, respondent No.3 therein appearing through counsel submitted that respondent No.3 had no objection to demolish the shed given to the party represented by respondent No.3 for election purpose and respondent No.3 will not obstruct the ingress to and egress from the petitioner's property. Learned Single Judge recorded that and then stated that if there was any objection for demolishing the shed, the petitioner should be ranted adequate protection. Learned Single Judge recorded that and then stated that if there was any objection for demolishing the shed, the petitioner should be ranted adequate protection. It is challenging this decision, that the appellants in this appeal, strangers to the Original Petition, filed the writ appeal with the leave of this court. 4. According to the appellants, the property in question was held by their predecessor as a mortgagee and on his death, the property has devolved on them. The petitioner had no right or possession over it. The petitioner's assignor had also no right or possession. They contended that the property was blocked in survey No. 167/5/1 and it had no sub-division like 1 and 2 as sought to be put forward in the Original Petition. They also pointed out that the suits filed by the legal representatives of the mortgagor on earlier occasions had been dismissed. Thus, the appellants claimed that they were in possession of the property and they had given permission for constructing a shed for election purposes and the petitioner in the Original Petition had no right, possession or authority over the property. A counter affidavit was filed by the first respondent herein, the petitioner in the Original Petition, setting up a case that originally there was an agreement for sale entered into in her favour by the prior owner of the property who obtained title over it under a testamentary disposition and that the agreement for sale was followed up by a sale deed and that was the right the first respondent herein had over the property. The agreement for sale was put forward mainly to rebut the arguments of the appellants that the alleged permission was given on 11.11.1999 whereas the sale deed in favour to the first respondent was executed only on 23.11.1999. The agreement for sale put forward by the first respondent herein was on 4.1.1999. But, curiously that agreement for sale is not referred to in the sale deed taken by the first respondent herein on 23.11.1999. 5. The matter was argued before us as if this were a trial court and this was an original suit. The arguments before us itself discloses the dangers of this court exercising jurisdiction under Art.226 of the Constitution of India in matters involving civil dispute relating to title and possession. 5. The matter was argued before us as if this were a trial court and this was an original suit. The arguments before us itself discloses the dangers of this court exercising jurisdiction under Art.226 of the Constitution of India in matters involving civil dispute relating to title and possession. The grant of a writ of mandamus to the police authority to protect the possession of one or the other should not be normally granted by this court in proceedings under Art.226 of the Constitution of India unless the same had been earlier established in a civil court or protection orders have already been made by the civil courts. This is especially in view of the fact that a civil dispute is involved and it can be decided only by a competent civil court. In cases where the claims of possession and claims of right are made over property and that too vaguely, as was done in the Original Petition in this case, we are afraid that this court would not be acting properly in exercise of jurisdiction under Art.226 of the Constitution of India if it were to issue directions to the police to protect the claim of possession of the person who has come before this court before going to the civil court. This case shows that even when there were rival claimants to the property, they are not impleaded in the Original Petition as respondents. This makes it all the more unsafe for this court to issue directions under Art.226 of the Constitution of India as in this case. It also becomes difficult, if not impossible for this court exercising jurisdiction under Art.226 of the Constitution of India to decide whether necessary parties have been impleaded and whether any other interested party would be affected or not. The Supreme Court has repeatedly stated that Art.226 of the Constitution of India, is not the forum for deciding civil disputes or disputes relating to possession. We feel that it would be prudent for this court to always bear in mind that question of possession and question of possession and question of title are essentially questions to be settled in a civil court in a duly instituted suit and are not questions that could be adjudicated on in proceedings under Art.226 of the Constitution of India with any assurance or certainty. 6. 6. In the case on hand, it is clear that there is considerable dispute both regarding title and possession and dispute regarding the identity of the property that is involved. We are therefore of the view that the learned Single Judge was clearly in error in issuing directions to respondents 1 and 2 as he had done. We are therefore constrained to set aside the decision of the learned Single Judge and dismiss the Original Petition. But we make it clear that it will be open to either of the parties, if they feel it necessary, to approach the appropriate civil court for relief in accordance with law on establishing the right claimed by him or her before that court. 7. Without prejudice to that right of either of the parties, writ appeal is allowed, the judgment of the learned Single Judge is set aside and the Original Petition is dismissed.