M.C. George Mirante vs State and Others

T.L. Viswanatha Iyer, J.—Petitioner has purchased three cents of land in Sy. No. 1045/3 of Ernakulam Village from one Sunny Nicholas Louis by the document Ext. P1 dated 30-5-1989. Respondents 3 to 5 are occupying the neighbouring 3 cents of land by virtue of kudikidappu right obtained by the 4th respondent''s father from Sunny Nicholas Louis. Respondents 3 to 5 were allegedly attempting to trespass into the property now belonging to the petitioner, when the original owner Sunny Nicholas Louis filed suit O.S. No 668 of 1989 in the Munsiff''s Court, Ernakulam and obtained an exparte order of temporary injunction restraining respondents 3 to 5 from trespassing into the property, A copy of the order of injunction is Ext. P2. Despite the injunction, respondents 3 to 5 continued their alleged threat to forcibly occupy the property, whereupon the petitioner, who had purchased the property meanwhile, approached the police for necessary help to ward off the threat, as also the Revenue Divisional officer, Fort Cochin to take appropriate proceedings'' against respondents 3 to 5. The Revenue Divisional Officer, however, declined jurisdiction by his proceedings Ext. R4 on the ground that the dispute between the parties was pending adjudication in the civil court In the absence of any response from the police, petitioner has moved this original petition for direction to the second respondent. Sub Inspector of Police to afford adequate police protection to enter and enjoy the property purchased by him as per Ext. P1 sale deed. The counter affidavit filed on behalf of respondents 3 to 5 points out that the 4th respondent''s father Paramu was a kudikidappukaran, who Had been granted kudikidappu rights over 3 cents of land as per the order of the Land Tribunal, Ernakulam in O.A. No. 594 of 1976. Paramu had been in possession of the adjoining four cents as well. There is no boundary between the three cents purchased by him as kudikidappukaran and the neighbouring four cents, the latter being enclosed on the east and south by compound wall and on the north by a fence. He had been in possession and enjoyment of the same, planting coconut and mango trees, and taking the income therefrom for over twelve years past, and therefore, irrespective of whether he had title originally or not, he had perfected title to the same by prescription. Neither the petitioner nor his vendor Sunny Nicholas Louis had any possession of this four cents of land which formed the subject matter of Ext. P1 sale deed, though for a lesser extent. After Paramu''s death, his daughter the 4th respondent inherited the property, and she is in enjoyment along with her husband, the third respondent, and another, the 5th respondent. Respondents 3 to 5 have filed their written statement in the suit, and objections to the petition for injunction, which is posted for hearing. On the petitioners, approach to the Revenue Divisional Officer, respondents 3 to 5 explained the position to the latter, who thereupon declined to interfere in the matter by his proceedings Ext. R4.

The question for consideration is whether in these circumstances, there is any duty cast on the police to act in aid of the petitioner, as requested by him, and to afford protection to. "enter and enjoy" the disputed property.

The dispute in this case is essentially a civil dispute. The parties are at variance as to whether the petitioner has possession at all over the property. Respondents 3 to 5 are claiming that they are in possession of the property forming the subject matter of Ext. P1. The matter is now pending in the civil court. It is true that there is an order of interim injunction passed by the Munsiff, but the continuance of that order is opposed by respondents 3 to 5, who have already filed their objections to the petition for injunction.

In matters involving civil rights, or disputes regarding title and possession over property, it is not proper for this court to interfere under Article 226 of the Constitution with an order for police protection. Police cannot be made the adjudicators of such disputes inter se between the parties, either regarding possession of property or regarding boundaries or regarding easements or the like. These are matters essentially within the domain of the civil courts on which the parties should approach those courts and seek redress. Police does not have the right to decide on such disputes, nor is it proper or competent for them to do so. They do not also have the machinery for the purpose. It is outside the limits of the duties which are cast on them, which is to prevent breach of peace or commission of cognisable offences, and to preserve law and order. It will be totally against the rule of law if the might of the police is to be used in favour of one party against another without an adjudication by any appropriate authority of the rights of either side. In all such cases, the proper remedy, for a party feeling aggrieved, is to approach the civil court for the establishment of his rights, and seek appropriate injunctive reliefs against the offending party, and if any such orders are attempted to be violated to seek their enforcement by the civil court itself. The civil court has the power in such cases to enforce its orders under Older 39 Rule 2A or section 151 C.P.C. with police aid, if necessary, as was held by this court in Mohammed v. Mohammed Ali, 1986 KLT 134 When such remedies are available, this court should be loathe to direct interference by the police or to afford protection, though this court is not powerless to act in appropriate cases to preserve the right to property. But such interference should be made sparingly, and not in cases where the parties have an effective remedy or relief by resort to the civil court itself.

This position was explained by this court in the decision in in Thomas v. Superintendent of Police, 1980 KLT 151. It was observed:

Questions of possession, right to enjoy property or easements, without obstruction, nuisances and similar other matters are best adjudged by a civil court. These are not certainly matters for the police to sit in judgment upon. The rule of law in this country is likely to be jeopardised if policemen are to decide whether they should recognise rights of easements, rights of possession and other similar civil rights and use their force to help one party or other in whose favour they reach a decision. Resort to this court seeking police assistance in matters where decisions on such questions are called for would certainly be ill-advised. To recognise policemen as competent to decide such disputes would be giving them powers which are capable of abuse. If there is a genuine dispute between the parties that has to be resolved by the civil courts. If the police feel that there is a genuine dispute which should normally call for decision by an appropriate court, they will be right in refusing to interfere. The long and short of it is that though this court is not without power to issue directions in a very appropriate case of inaction by the police in such matters the resort to this court as a matter of course would be unjustified.

I am agreement with this view. As stated above the petitioner has already approached the civil court.

It is true that an order of interim injunction has been passed. It is also a fact that respondents 3 to 5 are contesting the continuance of that order. It will be premature and dangerous to enforce the exparte interim order of injunction when its continuance is opposed. It has to be remembered that such exparte orders are issued on the basis of the one sided averments made before court. The true picture will emerge only after hearing both sides. It is therefore imperative that police should not be allowed to intervene or interfere at this stage in matters of possession, which entail civil disputes, especially when the matter is one at the interlocutory stage of proceedings. When there is dispute between the petitioner and respondents 3 to 5 and it is only an interim exparte order passed by the Munsiff, that is now in force, this court shall not interfere in the matter with a direction for police aid. I decline to accede to the prayers of the petitioner. I dismiss the original petition.