KALLAI ABU v. THE SUB INSPECTOR OF POLICE

..2....WPC.NO.12588/2012 W7. SARADA, DAUGHTER OF NAMBOLA NARAYANAN, `NAMBOLA HOUSE', ANNUNNI PARAMBA, KOTTAKKUNNU, UP-HILL P.O., MALAPPURAM DISTRICT, PIN-676 505.8. NALINI, DAUGHTER OF NAMBOLA NARAYANAN, `NAMBOLA HOUSE', ANNUNNI PARAMBA, KOTTAKKUNNU, UP-HILL P.O., MALAPPURAM DISTRICT, PIN-676 505.9. PADMINI, DAUGHTER OF NAMBOLA NARAYANAN, `NAMBOLA HOUSE', ANNUNNI PARAMBA, KOTTAKKUNNU, UP-HILL P.O., MALAPPURAM DISTRICT, PIN-676 505. R1 TO R3 BY SR.GOVERNMENT PLEADER SRI.C.R.SYAMKUMAR R4 TO R9 BY ADV. SRI.VINOD VALLIKAPPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-11-2012, THE COURT ON 17/11/2012 DELIVERED THE FOLLOWING:Kss WPC.NO.12588/2012 WAPPENDIXPETITIONER'S EXHIBITS: EXHIBIT P1- TRUE COPY OF THE JUDGMENT DATED 12.8.2003 IN OS NO.169 OF1995 ON THE FILE OF THE COURT OF THE MUNSIFF OF MANJERI. EXHIBIT P2- TRUE COPY OF THE DECREE DATED 12.8.2003 IN OS NO.169 OF 1995ON THE FILE OF THE COURT OF THE MUNSIFF OF MANJERI.EXHIBIT P3- TRUE COPY OF THE JUDGMENT DATED 12.1.2011 IN AS NO.133 OF2003 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE (ADHOC-II), MANJERI.EXHIBIT P4- TRUE COPY OF THE DECREE DATED 12.1.2011 IN AS NO.133 OF 2003ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE (ADHOC-II) MANJERI.EXHIBIT P5- TRUE COPY OF THE JUDGEMENT DATED 8.8.2011 IN RSA NO.542 OF2011 ON THE FILE OF THIS HONOURABLE COURT.EXHIBIT P6- TRUE COPY OF THE COMPLAINT DATED 14.5.2012 PREFERRED BY THEPETITIONER BEFORE THE FIRST RESPONDENT-INSPECTOR OF POLICE.EXHIBIT P7- TRUE COPY OF THE RECEIPT DATED 14.5.2012 ISSUED BY THESECOND RESPONDENT. EXHIBIT P8- TRUE COPY OF THE RECEIPT DATED 14.5.2012 ISSUED BY THE THIRDRESPONDENT.EXHIBIT P9-TRUE COPY OF THE PLAINT DATED 01/06/1995 IN O.S.NO.169 OF 1995ON THE FILE OF THE COURT OF THE MUNSIFF OF MANJERI. RESPONDENTS' EXHIBITS:N I L /TRUE COPY/P.S.TO JUDGE Kss K.M. JOSEPH & K. HARILAL JJ. ===================== WP(C) NO. 12588 OF 2012 =====================Dated this the 17th day of November 2012 JUDGMENTK.Harilal,J.Briefly put, the averments in the writ petition are asfollows :-The petitioner purchased 12 cents of property from oneSmt.Sarojini, the predecessor in title by virtue of registeredAssignment Deed No.21/1993 of Sub Registrar's Office,Malappruam. After purchase of the property, when thepetitioner started to transport materials through theproperty of the petitioner to construct a house, NambolaNarayanan, the predecessor in interest of respondents 4 to9 herein obstructed the same and that culminated inintervention of police. Thereupon Nambola Narayanan, thepredecessor in interest of the respondents filed O.S.No.169of 1995 on the file of the Munsiff Court, Manjeri against thepetitioner for restraining the petitioner from cutting upon a WPC 12588/20122way through item Nos. 2 and 3 of the plaint scheduleproperty, entering into the said property or using the saidproperty as a way or plying vehicles through the saidproperty. A mandatory injunction was also sought for in thesuit, to restore the demolished portion of the compound wallon the eastern side of item Nos. 2 and 3 of the plaintschedule property. On the death of Nambola Narayanan,respondents 4 to 9 herein were impleaded in the suit assupplemental plaintiffs. The contention of respondents 4 to9 was that the property was orally entrusted to NambolaNarayanan by one Velayudhan and Govindan with whom theproperty was outstanding on tenancy rights. It wascontended that jenmam rights of the properties which wasvested in the Government was obtained by NambolaNarayanan by virtue of Purchase Certificate issued to him inthe year 1979 from the Land Tribunal, Malappuram andthat Nambola Narayanan was having jenmam rights andpossession over item No. 3 of the plaint schedule property. WPC 12588/20123It was also contended that item No.3 of the plaint scheduleproperty was taken by entrustment from Velayudhan andGovindan and as a way to the burial ground situate on thesouth. The dispute in the suit was with respect to item No.3of the plaint schedule property in the suit. The petitionercontended that Nambola Narayanan, the predecessor ininterest of respondents 4 to 9 has got neither title norpossession over item No.3 of the plaint schedule property.It was also contended that item No.3 of the plaint scheduleproperty is taken in by Assignment Deed in favour of thepetitioner. The suit was decreed as prayed for by Ext.P1Judgment dated 12.08.2003. The petitioner preferred anappeal before the District Court, Manjeri and the appeal wasallowed by Ext.P3 Judgment and Ext.P2 decree of the trialcourt was set aside. The respondents 4 to 9 preferred 2ndappeal before the High Court. It was also dismissed byExt.P5 Judgment.2. Now the petitioner wanted to construct a compound WPC 12588/20124wall and to erect a gate in item No.3 of the plaint scheduleproperty. Coming to know of this, respondents 4 to 9preferred a complaint before the 1st respondent, SubInspector of Police, alleging that the petitioner along withhis wife and son trespassed into the property of respondents4 to 9. The petitioner was summoned to the police stationby the 1st respondent. The petitioner apprised true factsbefore the 1st respondent. The petitioner filed a complaintagainst respondents 4 to 9, sought for police protection inview of the Judgment of this Court, dismissing therespondents' claim over the property and accepting thepetitioner’s right over the property. Respondents 1 to 3were bound to afford police protection to carry out works inthe property in view of Exts.P3 and P5 Judgments. But theydid not give protection so far for the construction in thepetitioner’s property and the threat is still continuing.Therefore the petitioner prayed for order of this Court,directing respondents 1 to 3 to afford adequate police WPC 12588/20125protection to carry out construction works in item No.3property scheduled to Ext.P2 decree. Respondents 4 to 9filed a counter affidavit, inter alia contending that thepetitioner herein is trying to encroach into respondents'property, which lies adjacent to petitioner’s property andconstructed a wall which is being objected to byrespondents 4 to 9. Even though the 2nd appeal wasdismissed, respondents 4 to 9 preferred a leave before theHonourable Supreme Court of India which is to be taken upfor admission. The proper remedy for the petitioner is tofile a suit for demarcation of boundaries and after that hecan construct a compound wall. The police authoritiescannot adjudicate the dispute as regards the boundary ofthe property and the remedy of the petitioner is to approachthe Civil Court. The petitioner seeks to circumvent duelegal process by approaching this Court, seeking protectionfrom the police for constructing a wall which if allowed,would encroach into their property. WPC 12588/201263. We heard Sri.Rajesh.R.Kormath, the learnedcounsel for the petitioner and Sri.Vinod Vallikappan,the learned counsel for respondents 4 to 9, and the learnedGovernment Pleader. 4. Sri.Rajesh.R.Kormath advanced arguments insupport of the contentions raised in the writ petition. Hismain argument is that in view of Ext.P5 Judgment passed bythis Honourable Court, dismissing the claim raised byrespondents 4 to 9 over the property involved in this writpetition, the petitioner is entitled to get police protection tomake constructions including boundary wall in the abovesaid property. Respondents 1 to 3 are bound to give policeprotection in view of the Judgment passed by this Court, butthey are staying away from discharging their bounden dutyunder law. Therefore the petitioner is entitled to getdirection from this Honourable Court to grant policeprotection to carry out construction work in the propertymentioned in the writ petition. WPC 12588/201275. Per contra, the learned counsel for respondents 4 to9 contended that this is purely a civil dispute for which thepolice authorities have no right to interfere and thereforetheir stand is absolutely prefect under law. Under the guiseof construction in the said property, the real intention of thepetitioner is to encroach into respondents' property and putup a boundary wall. Therefore the petitioner has toapproach the Civil Court for getting proper remedy if theyare aggrieved. There is no decree declaring petitioner’sright over the property. The decree rejected their claimsonly. 6. We have given our anxious considerations to therival submissions made at the Bar. The question to beconsidered is whether the petitioner is entitled to get anorder, directing respondents 1 and 3 to afford policeprotection to carry out construction works includingboundary wall in item No.3 property scheduled to Ext.P2decree in view of Ext.P5 Judgment of this Court, which WPC 12588/20128attained finality according to him.7. In the counter affidavit filed by respondents 4 to 9 ,it is stated that they have preferred a leave petition beforethe Supreme Court, against Ext.P5 Judgment and the samehas to come up for admission. Ext.P5 Judgment was passedon 08.08.2011. But no records have been produced to showthat special leave petition is pending before the SupremeCourt. Therefore we are inclined to decide the matter onthe basis of the materials available on record. 8. Going by Ext.P5 judgment, the claim of partyrespondents 4 to 9 was that they have title and possessionover item No.3 property, scheduled to Ext.P2 decree byvirtue of an oral lease and Purchase Certificate issuedsubsequently. By Ext.P3 Judgment, the above claim raisedby party respondents 4 to 9 has been negatived by the 1stAppellate Court. Therefore, as on today, respondents 4 to9 have neither title nor possession over item No.3 property,scheduled to Ext.P2 decree. Therefore we are of the opinion WPC 12588/20129that respondents 4 to 9 have no right to cause any kind ofobstruction against enjoyment of the said property. 9. In the counter affidavit filed by respondents 4 to 9,they contended that the petitioner is trying to encroach intotheir property, which is lying adjacent to Ext.P2 decreeproperty and to construct a compound wall in the boundarywhich could not be identified. Thus the boundary standsdisputed. So they have not raised any objection againstother construction. In such circumstances, we are inclinedto take a decision in the case of police protection forconstruction of the compound wall in view of the legalposition settled by the Division Bench of this Court.Compound wall is a construction to be made in the boundaryline of both properties. Boundary can be fixed on the basisof measurements to be made in the property in accordancewith title deeds and survey plan. Unless boundary is fixedin accordance with the method prescribed under law, noconstruction can be made in the boundary, particularly when WPC 12588/201210adjacent property owners object or dispute construction atthe boundary. No doubt, police cannot do this work.Fixation of boundary line is a work which is to be done by acompetent Surveyor under the supervision of an AdvocateCommissioner to be appointed by a competent Civil Courtin a suit for fixation of boundary. Thus proper remedy liesin the Civil Court alone. In the decision reported inDevadasan v. State of Kerala [2005(3)KLT 739], thisCourt held that :In cases where a person wants to put up a boundarywall, the first question to be determined is whichexactly is the line through which a boundary wall isto be put up. In many cases, the respondents maynot have any objection in the petitioner constructinga boundary wall. The objection will be regarding thedividing line through which the same is to be put up.When there is dispute regarding the boundary lineseparating the two properties, if protection isgranted to one of the parties to put up a boundarywith police assistance, that will be nothing but anabuse of process of law. So the proper course opento the petitioner is to approach the Civil Court andget the dividing line fixed first. Even if such a line isfixed at the trial side while putting up of theboundary, it is to be ensured that the boundary isput up through the line which was fixed in thedecree. That can be ensured only by deputing a WPC 12588/201211commissioner with the assistance of a competentsurveyor. If the person against whom such a decreeis passed causes further obstruction, that can bebrought to the notice of the Civil Court and the CivilCourt has got every power to issue direction to thepolice to afford protection in executing the decree.There may be cases in which a person obtains adecree for declaration and injunction. In such casesthe respondent cannot be allowed to contend thatthe petitioner is not in possession of a property. Butwhere exactly the dividing line of that property fromthe neighbouring property is an issue which can bedecided only by a competent Court. So even if aperson obtains a decree declaring his title andpossession, no police protection can be granted tohim to put up the boundary of that decree scheduleproperty without the dividing line fixed by thecompetent Court first. Even if there is an order ofinjunction restraining a party from entering into theproperty, this Court shall not invoke the powersunder Art.226 by ordering police protection. Theparty who obtains such a decree can approach theCivil Court for enforcement of that decree. Thestatutory power given to the Survey officer is only tofix the boundary. The boundary so fixed is not final,that is subject to the result of the suit. Putting up ofboundary is a mater to be resolved only through acompetent Civil Court. Merely because the Surveyand Boundaries Act confers power on the SurveyOfficer to fix a boundary, it does not mean that aparty is entitled to put up boundary through the lineso fixed by the Survey Officer with police helpignoring the dispute raised by the opposite side.10. What this Court can order, direct or compel in WPC 12588/201212a writ petition under Article 226 of the Constitution of Indiaseeking police protection is what the police ought to do orought to have been done under any of the statute governingthe duties of police. Neither the Criminal Procedure Codenor the Police Act or any of the statute governing the act orduties of police, for the time being in force enjoins thepolice to render police assistance or police protection forexercising a disputed civil right over the property. Nodoubt, if it is entrusted to police, the consequence will bedisastrous. It will be dangerous, if this Court under writjurisdiction allows the police to fix boundary line so as toput up compound wall on a disputed boundary.11. The learned Government Pleader referring toSections 4(j) and 63(c) & (d) of the Kerala Police Act,2011pointed out that the above provisions cast duty upon thepolice to interfere with disputes, even if it is civil in nature,to prevent and resolve disputes and conflicts, which mayresult in crimes. WPC 12588/201213Section 4(j) of the Kerala Police Act reads as follows: “4.The functions of the police.-The police officersshall, subject to the provisions of this Act,performthe following functions, namely,-(j)to strive to prevent and resolve disputes andconflicts which may result in crimes.”Sections 63(c) and (d) of the Police Act read as follows:“63. Police action in disputes which may lead tocognizable offence.- If anyone brings to notice ofthe circumstance of a dispute between anyindividuals or groups which if not resolved at theearliest is likely to culminate into a cognizableoffence, the Station House Officer shall takesteps,-(c) to encourage individuals or groupsinvolved in the dispute to redress the disputethrough mutual discussion or through mediation;or(d) to advise individuals or groups toapproach the Competent Court having jurisdictionfor redressing the dispute.”12. We have given our solicitous consideration on theabove Sections of the New Police Act,2011. As perSection 4(j) of the Kerala Police Act, 2011, the Police havestatutory duty to strive to prevent and resolve disputes WPC 12588/201214and conflicts which may result in crimes. But obviouslySection 63(d)indicates the limits upto which police caninterfere in civil disputes and police cannot go beyond thatlimits. We are of the opinion that the power to resolvedisputes and conflicts under the provision is not intendedto confer authority to adjudicate civil disputes andconflicts. The resolution of civil disputes is a matterabsolutely within the domain of civil court only. To sum upwhat is intended under Sections 4(j) and 63(c) & (d) of thePolice Act,2011is not an adjudication process on civildisputes. 13. In view of the above settled legal principle, wehave considered Ext.P6 complaint dated 14/5/2012submitted before the first respondent. In Ext.P6 complaint,the petitioner has demanded police protection forconstruction of a compound wall in the disputed boundary,for which no protection can be given by the police under WPC 12588/201215law, unless the disputed boundary is fixed by a Civil Court.So, we are not inclined to grant the same relief under thewrit jurisdiction. 14. Consequently, the petitioner is relegated toapproach the Civil Court for the relief which we havedeclined in this writ petition. In the result, this writ petition is disposed ofaccordingly. Sd/-K.M. JOSEPH, JUDGESd/- K. HARILAL,JUDGEksTrue copyP.S.to Judge WPC 12588/201216