Sharafudeen @ Khader vs State Of Kerala

Anu Sivaraman, J.

This writ petition is filed with the following prayers:-

“i. Issue a writ in the nature of mandamus or any such other writ direction or order commanding respondents 2 to 4 to grant adequate police protection to the

petitioners for possessing and enjoying 3.58 acres of property comprised in Re.Sy.No. 25/2-4 of Block No. 47 of Karode Village, Neyyattinkara Taluk,

Thiruvananthapuram District which is more precisely depicted in the plan appended to Exhibit P2 Final Decree in 0.S.No.682/2009 on the files of Munsiff Court-II,

Neyyattinkara as A B B1 B2 B3 B6 B7 D3 D2 D1 C9 C8 C7 C6 C5 Al A2 A3 A4 A5 A6 A7 A8 A9 against any of the misadventures of respondents 5 to 13.

ii.Issue a writ of mandamus or any such other writ direction or order commanding respondent Nos.2 to 4 to grant adequate police protection to the life and limb of the

petitioners against the misadventures of respondents 5 to 13.â€​

Heard the learned counsel for the petitioners, the learned Government Pleader and the learned counsel appearing for respondents 10,12 and 13.

The learned counsel for the petitioners contends that the petitioners are co-owners in possession of property having an extent of 3 acre 58 cents in

Block No.47 of Re-survey No.25/2-4 of Karode Village, Neyyanttinkara Taluk, Thiruvananthapuram District. It is submitted that they obtained title

and possession pursuant to preliminary decree dated 23.9.2011 in O.S.No.682/2009 and final decree dated 12.06.2013, which is produced as Exhibits

P1 and P2 respectively. It is submitted that the petitioners are some of the plaintiffs in the suit. It is further submitted that pursuant to the final decree,

E.P.No.1/2014 was filed for getting delivery and actual possession of the plots allotted to the petitioners and that delivery was effected, as is

evidenced by Exhibit P3. Thereafter, the property allotted to the petitioners of which delivery was taken was also released from the receivership of

the RDO, Thiruvananthapuram by Exhibit P4 order.

The sharers partitioned the property among themselves, which was also the subject matter of O.S.No.1360/2014, which was settled among the

parties by Exhibit P5 compromise decree. Thereafter, mutation was effected and the petitioners had been enjoying the properties. It is submitted that

on 2.11.2011, respondents 5 onwards had prevented the petitioners from cultivating the said property and tried to trespass into the property and

committed mischief therein. The petitioners have submitted complaints before the Police, but to no avail. The petitioners seek protection for possessing

and enjoying the properties allotted to them which are covered by Exhibits P2 and P3.

A detailed counter affidavit has been placed on record by respondents 10,12 and 13. It is contended that the writ petitioners are trying to encroach

into the property, which was originally owned by one Perumal Ummini in Survey No.198/2 and Survey No.198/3 of Kolathoor Village, which is now in

Karode village. It is stated that by way of Ottikuzhikanam, the said property was mortgaged by Perumal Ummini and was later redeemed by his sons

Padmanabhan Nadar and Velayudhan Nadar. It is submitted that the 10th, 12th and 13th respondents are the linear descendants of Padmanabhan

Nadar and Velayudhan Nadar and that the property in old Survey No.198/2 and 198/3 belong to respondents 10,12, and 13 by succession. It is stated

that the petitioners have no right over the said property and that the petitioners are encroaching on the land, which is under the title and possession of

Padmanabhan Nadar and Velayudhan Nadar. It is contended that earlier attempts had been made by one Najeeb Khan to obtain an order of police

protection by filing W.P.(C).No.10824/2013, which had been dismissed by this Court by Exhibit R10(b) judgment. The decisions of this Court in Shaji

M.K. and another v. State of Kerala and others [2018(3) KHC 69] and Moran Mar Baselious Marthoma Mathews II and others v. State of Kerala

[2007 KHC 348] and St.George Tabore Church and others v. State of Kerala and others [2020 KHC 913] are relied on to contend that since the

identity of the property is itself in question, the petitioners have to approach the civil court and cannot take recourse to Article 226 of the Constitution

of India for enforcing the decree of the civil court.

The learned counsel for the petitioners would contend that the documents produced by the petitioners would show that the petitioners have right and

title over the property and that delivery of the property was also effected through court by Exhibit P3. It is submitted that in the above circumstances,

the respondents cannot prevent the petitioners from enjoying the properties to which they have been held entitled by the civil court and delivery

effected by Exhibit P2. The learned counsel for the petitioners places reliance on the decision of this Court in Unnikrishnan and others v. Kunhibeevi

and others [2011(1) KHC 352], Illyas T.A v. State of Kerala and others [2014 KHC 647] and Baby v. Deputy Superintendent of Police, Attingal and

others [2019 (4) KHC 660].

The learned counsel for the contesting respondents would contend that the entire procedure adopted by the petitioners is clearly collusive in nature

and that the party respondents are taking up the matter before the civil court for establishing their right over the property. It is submitted that they are

not creating any law and order issues or assaulting or threatening the petitioners physically in any manner. However, it is contended that this may not

interdict their rights to seek recourse to law for protecting their properties, which are covered by Exhibit R10(a) encumbrance certificate.

I have considered the contentions advanced. It appears that the petitioners have filed a partition suit and have obtained Exhibit P1 preliminary

decree. Later, by Exhibit P2, a final decree has also been rendered partitioning the property by metes and bounds. Delivery was also effected on

5.6.2014. Thereafter, by Exhibit P4, 3 acres 87 cents of properties in old Survey No.198/2AB have also been released from receivership. While it is

an accepted position that this Court exercising jurisdiction under Article 226 of the Constitution of India cannot embark on an adjudication on disputed

questions of fact, the petitioners by producing Exhibits P1 to P5 documents have established that they have title and right over the property covered by

Exhibit P3. If that be so, the remedy of the party respondents, even if their contentions are correct, would be to raise claims to the property in question

in accordance with law. They cannot physically obstruct the petitioners from enjoying the property delivered as per Exhibit P3.

In the above factual situation, I am of the opinion that in case the party respondents have any contentions with regard to the rights over the property

covered by Exhibits P1 to P3 or with regard to the identity of the property which has been delivered to the petitioners. It is for them to take recourse

to appropriate action under law and not to obstruct the petitioners physically. In case they have a contention that the property which is possessed by

the petitioners is not the property which was delivered by Exhibit P3, pursuant to Exhibit P2 final decree also, it is for them to raise such contentions

before the appropriate civil court. The contention that they intend to raise a civil dispute, by itself will not enable them to obstruct the enjoyment of the

property of the petitioners pursuant to Exhibits P2 and P3.

10.In the result, the petitioners would be entitled to police protection for the enjoyment of the properties covered by Exhibits P2 and P3 which they

claim to be in lawful possession of. This will be without prejudice to the rights of the party respondents to approach a civil court in accordance with

law for the adjudication of their claims with regard to the of the property, if any. In case the petitioners face any threat or obstruction from the party

respondents, they shall inform the 4th respondent, who shall take appropriate action in the matter.

Writ petition is ordered accordingly.