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2011 DIGILAW 985 (KER)

Eapen Mathai v. State of Kerala

2011-09-07

C.K.ABDUL REHIM, PIUS C.KURIAKOSE

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JUDGMENT : Petitioner, a senior citizen at the age of 81 years, is approaching this court seeking police protection to his life and properties. Inter alia, the petitioner is seeking protection for the construction of compound wall on the boundary of property owned by him along with his family members, having an extent of 4 Acres 63 Cents, comprised in Sy. No.1588 of Mulanthuruthy village. Allegation is that the respondents 5 to 9, who are owners of the neighbouring properties are creating obstructions to the construction of the compound wall and they are removing boundary stones put on, under the guise of some illegal claims with respect to right over the property. 2. It is stated that with respect to removal of the boundary stones a criminal case was already registered at Mulanthuruthy Police Station, as Crime No.99/07 as evident from Ext.P2 FIR. It is further stated that against the illegal obstructions and the unlawful acts on the part of the respondents 5 to 9, the petitioner had filed O.S. 1890/90 before the Civil Court, seeking permanent prohibitory injunction. The respondents have also filed suits as O.S, 1932/90 and O.S, 1965/90. The above suits were disposed of through a common judgment (Ext.P7) wherein a decree of permanent prohibitory injunction was issued against the respondents. It is also stated that the decree in question was confirmed by the Appellate Court as per Ext.P9 judgment. According to the petitioner, a dispute raised by the respondents with respect to the boundary of the property in question, before the Deputy Director of Survey and Land Records, Ernakulam also stands dismissed, as per Ext.P8. Grievance voiced by the petitioner is that inspite of the judgment and decree passed by the competent civil court as well as decision taken by the competent authorities of the Department of Survey and Land Records, the respondents are creating illegal obstruction. According, to the petitioner, inspite of Ext.P6 complaint submitted before the Director General of Police, copy of which were submitted also to respondents 2 to 4, no action was taken to afford protection. Hence, this Writ Petition is filed. 3. In the counter affidavit filed on behalf of respondents 5 to 9 it is contended that there exists a dispute with respect to ownership and possession of a portion of the property covered under Ext.P1 document. Hence, this Writ Petition is filed. 3. In the counter affidavit filed on behalf of respondents 5 to 9 it is contended that there exists a dispute with respect to ownership and possession of a portion of the property covered under Ext.P1 document. However, the respondents concede that all the allegations raised regarding threat and intimidation to the life of the petitioner is absolutely baseless. It is further stated that the respondents have no intention to cause any sort of threat, intimidation or harassment to the person of the petitioner or to his family members. 4. Sri. Mathai Eapen Vettath, learned counsel appearing for the petitioner submitted that on the basis of a request made by the petitioner, the Taluk Surveyor had conducted measurement and demarcated the boundary recently, it is complained that, still the respondents are causing obstruction for construction of the compound wall on the demarcated boundary and the boundary stones were removed again. 5. Considering the facts and circumstances as narrated above and also the rival contentions, we are of the considered opinion, that the petitioner has to execute the decree obtained in his favour under Ext.P7 judgment which is confirmed in appeal through Ext.P9, if it had attained finality. On the basis of the decree of permanent prohibitory injunction obtained, it is left open to the petitioner to approach the execution court seeking assistance for construction of the compound wall for protecting his property. If there is any obstruction or hindrance in execution of the decree, the civil court is competent to provide assistance by deputing an officer of the court/Advocate Commissioner, if necessary by directing to afford police protection. 6. Since the matter is in the nature of a civil dispute and since it will fall within the realm of execution of a decree, it may not be proper and justified for this court to direct police protection. Under such circumstances, the person aggrieved should take recourse to remedy available under common law and invoking jurisdiction of this court under Article 226 cannot be permitted. Hence, we make it clear that the petitioner will be at liberty to seek appropriate relief through execution of the decree. Under such circumstances, the person aggrieved should take recourse to remedy available under common law and invoking jurisdiction of this court under Article 226 cannot be permitted. Hence, we make it clear that the petitioner will be at liberty to seek appropriate relief through execution of the decree. We also make it clear that if any execution petition is filed, it will be left open to the execution court to order measurement/re-measurement of the property if required, by deputing an Advocate Commissioner assisted by a competent surveyor, if necessary with police assistance, to fix the alignment of the compound wall to be constructed. 7. With respect to the question regarding protection to the life of the petitioner. we record the statement made on behalf of the respondents 5 to 9 that they have no intention to cause any threat or intimidation either to the petitioner or to any of his family members. Learned Government Pleader appearing for respondents 1 to 4 submitted that the police officers will take necessary steps if any intimation regarding any threat to life if reported. 8. Under the above mentioned circumstances, we dispose of the Writ Petition directing respondents 2 and 3 to take effective steps if any intimation is received with respect to any threat or intimidation to the lives of the petitioner or his family members, to afford protection. They should also ensure law and order situation and avert any breach of peace, emerging out of the dispute between the petitioner and the contesting respondents with respect to the property in question.