Kerala High Court
Vinayak Mohandas vs State Of Kerala on 2 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
WP(C) NO. 26656 OF 2019
PETITIONER:
VINAYAK MOHANDAS,
AGED 24 YEARS
S/O.LATE R.MOHANDAS, 1 C, DAFFODILS, SKYLINE
RIVERDALE, PETTAH ERNAKULAM, PIN-682301.
BY ADVS.
K.V.BHADRA KUMARI
SRI.SHINU J.PILLAI
SMT.P.V.RADHAMANI
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO THE HOME
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-
695001.
2 DEPUTY SUPERINTENDENT OF POLICE,
VAIKOM, KOTTAYAM DISTRICT, PIN-686141.
3 STATION HOUSE OFFICER,
OFFICE OF THE CIRCLE INSPECTOR OF POLICE, VAIKOM,
KOTTAYAM, PIN-686141.
4 SHEEBA,
AGED 52 YEARS
W/O.BIJU, VADAKKEKOTTARAM, VAIKOM, PIN-686141.
R4 BY ADV SMT.MINI.V.A., LEGAL AID COUNSEL
R1 TO R3 BY SRI.N.B.SUNIL NATH, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.26656/2019
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No.26656 of 2019
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Dated this the 02nd day of July, 2021
JUDGMENT
The case of the petitioner is that, he and his elder brother
and mother are in joint ownership of 7.69 Ares of land in Survey
Nos.70/15 and 74/3 of Naduvile Village. A building is also there
with Municipal Door No.5/126.
2. According to the petitioner, the property vested upon
them by petitioner's father during his life time. The father died
on 10.06.2019. The petitioner is a lawyer practicing at
Ernakulam, her mother is also a lawyer practicing at Delhi and
his elder brother is a Captain in Indian Army. After the
completion of customary rituals in connection with the death of
the petitioner's father, when the petitioner, his mother, brother
and relatives left the house, it is alleged that the 4 th respondent
trespassed into the above property and started to reside in the
house. According to the petitioner, the 4 th respondent is a
stranger to the family. The petitioner submitted that the 4 th
respondent filed Ext.P1 petition before the Judicial First Class
W.P.(C).No.26656/2019
Magistrate Court - I, Vaikom under the PWDV Act. The learned
Magistrate passed an interim order as evident by Ext.P2.
Subsequently the learned Magistrate considered the case in
detail and dismissed the petition filed by the 4th respondent as
evident by Ext.P5 order. The counsel for the petitioner submitted
that the 4th respondent has no right to reside in the house of the
petitioner and his family members. They are the absolute owners
of the property. The counsel submitted that there is a registered
Will executed by the deceased father in favour of the petitioner
and others. Ext.P8 is the alleged Will. According to the counsel
it is a registered Will. Therefore the 4 th respondent has no right
to reside in the house. The counsel submitted that the petitioner
may not be dragged to the civil court for getting this relief.
According to the counsel, it is a clear case in which a stranger is
residing in the house of the petitioner and therefore, this Court is
justified in passing police protection to evict the 4 th respondent
from the house. The counsel relied upon the judgment of this
Court in Jithesh v. State of Kerala [2013 (4) KLT 565],
Harrisons Malayalam Ltd (M/s.) and Others v. State of
Kerala and Others [2010 (2) KHC 813], M/s. Harrisons
Malayalam Ltd v. State of Kerala [2007 (4) KLT 540] and
W.P.(C).No.26656/2019
Reghunathan v. Deputy Superintendent of Police [1986
KLT 1263].
3. When notice was issued to the 4th respondent, there
was no appearance. Therefore this Court passed an order on
26.06.2020 which is extracted hereunder:
"This writ petition is filed for police protection. Though
notice was served on the fourth respondent by special
messenger, she has not chosen to appear. She is 50
years old. According to police, she is in occupation of
the building. It is necessary to ascertain why the fourth
respondent could not appear before this Court. If she is
not able to afford a lawyer, necessarily, legal aid should
be provided to her. The Taluk Legal Services
Committee, Vaikom shall visit her and ascertain whether
she is willing to be represented through a lawyer or not.
The Kerala State Legal Services Authority shall obtain
such report immediately.
Post on 30.06.2020."
Thereafter, based on the report from the KELSA, a counsel was
appointed for the 4th respondent.
4. I heard Adv.Mini V.A., who appeared for the 4th
respondent.
5. The counsel for the 4th respondent submitted that the
averments in the writ petition are absolutely incorrect. The
W.P.(C).No.26656/2019
petitioner suppressed several facts from this Court. According to
the counsel, the 4th respondent is residing in the house from
2000 onwards. The counsel submitted that the 4 th respondent
was living together with the deceased father of the petitioner.
There was a child in the relationship. The child is no more.
Ext.R4(a) is the death certificate. The counsel takes me through
Ext.R4(a) in which the father's name is mentioned as Mohandas,
who is the father of the petitioner. The counsel also takes me
through Ext.R4(c), the petition filed by the mother of the
petitioner for divorce from her husband under Section 13 of the
Hindu Marriage Act. The counsel specifically takes me through
paragraph 4 of Ext.R4(c) in which the mother of the petitioner
contended that the 4th respondent is residing with her husband in
the house from 2000 onwards. The counsel submitted that based
on Ext.R4(c) divorce petition, the Family Court passed a decree
as evident by Ext.R4(d) in which the marriage between the father
of the petitioner and the mother of the petitioner was dissolved
under Section 13 of the Hindu Marriage Act. The counsel also
submitted that the 4th respondent filed O.S.No.51 of 2020 before
the Munsiff's Court for a permanent injunction restraining the
petitioner and others from entering into the house in which she
W.P.(C).No.26656/2019
is now residing. The counsel also submitted that Ext.P5 order
passed by the learned Magistrate is challenged before the
Sessions Court, Kottayam by filing Criminal Appeal No.29 of
2019 and the same is also pending. The counsel submitted that it
is a case in which there is civil dispute pending between the 4 th
respondent and the petitioner. This Court may not interfere with
the dispute. The counsel submitted that the suit is pending
before the civil court. Any order passed by this Court in this writ
petition will affect her contentions before the civil court.
6. The Government Pleader submitted that there is no
law and order issue at present. The Government Pleader also
submitted that it is a clear case of civil dispute between the
petitioner and his family members on one side and the 4 th
respondent on the other side. The matter is to be decided by the
civil court and this Court may not pass any orders in this writ
petition.
7. After hearing both sides, I think there is some force in
the argument of the Government Pleader. This is a clear case in
which there is property dispute between the petitioner's family
and the 4th respondent. Admittedly the 4th respondent is residing
in the house in dispute. The petitioner says that the 4 th
W.P.(C).No.26656/2019
respondent is an encroacher. The 4th respondent says that she is
residing there from 2000 onwards and she has got certain rights.
This Court while entertaining a writ petition under Article 226 of
the Constitution of India cannot decide all these disputed facts.
The counsel relied on the judgment of this Court in Jithesh's
case and Harrisons Malayalam's case (supra). Those decisions
were rendered by this Court on entirely different factual
situation. In the present case, it is a clear case of civil dispute
about a property in which this Court cannot interfere invoking
the powers under Article 226 of the Constitution. I do not want to
make any further opinion about the contentions of the petitioner
or the 4th respondent because it will affect their right before the
civil court. All contentions of the petitioner's family and the
contentions of the 4th respondent are left open. But I make it
clear that if there is any threat to the life of the petitioner, the
Police will do the needful. The counsel for the petitioner also
contended that after the divorce order from the Family Court, the
mother of the petitioner reunited with his father and they were
living together. Thereafter the Will is executed by the father. I
cannot decide these factual contentions in a writ petition under
Article 226 of the Constitution of India.
W.P.(C).No.26656/2019
Therefore, this writ petition is disposed in the following
manner:
1. All contentions of the petitioner and the 4 th
respondent about their right in the property in
dispute are left open.
2. If there is any threat to the life of the petitioner,
the petitioner is free to approach the Station
House Officer concerned with a complaint.
3. If such a complaint is received, the Station House
Officer will do the needful in accordance to law.
4. But I make it clear that, under the guise of the
above order, the petitioner can't evict the 4 th
respondent from the disputed property. The
petitioner can take appropriate civil remedy
against the 4th respondent in accordance to law.
With the above observations, this writ petition is disposed
of.
Sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
W.P.(C).No.26656/2019
APPENDIX OF WP(C) 26656/2019
PETITIONER ANNEXURE
EXHIBIT P1 TRUE COPY OF THE PETITION DATED
28.6.2019 IN M.C.NO.29 OF 2019 FILED BY
THE 4TH RESPONDENT BEFORE THE HON'BLE
J.F.C.M. COURT, VAKOM.
EXHIBIT P2 TRUE COPY OF THE AD-INTERIM ORDER IN
M.C.NO.29 OF 2019 DATED 28.06.2019 OF
THE HON'BLE J.F.C.M.COURT, VAKOM.
EXHIBIT P3 TRUE COPY OF THE APPLICATION FILED BY
THIS PETITIONER IN M.C.NO.29 OF 2019.
EXHIBIT P4 TRUE COPY OF THE COUNTER DATED
16.09.2019 FILED BY THE 4TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 23.09.2019
IN M.C.NO.29 OF 2019.
EXHIBIT P6 TRUE COPY OF THE COMPLAINT FILED BY
PETITIONER'S MOTHER BEFORE THE 3RD
RESPONDENT HEREIN.
EXHIBIT P7 TRUE COPY OF THE COMPLAINT DATED
01.10.2019 FILED BEFORE THE 2ND
RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE WILL DEED NO.3/III/2016
DATED 6.1.2016 OF VAIKKOM S.R.O.
RESPONDENT'S EXHIBITS:
EXHIBIT R4(a) TRUE COPY OF THE DEATH CERTIFICATE OF
4TH RESPONDENTS SON VISHNU MOHANDAS
EXHIBIT R4(b) TRUE COPY OF THE NOMINATION SUBMITTED BY
THE 4TH RESPONDENTS HUSBAND R.MOHANDAS
EXHIBIT R4(c) TRUE COPY OF THE OP NO.1306/2006 FILED
BEFORE THE FAMILY COURT ERANAKULAM.
EXHIBIT R4(d) TRUE COPY OF THE JUDGMENT DATED
28/6/2008 IN OP NO 1306/2006 FILED
W.P.(C).No.26656/2019
BEFORE THE FAMILY COURT ERNAKULAM
EXHIBIT R4(e) TRUE COPY OF THE PLAINT IN OS NO.51/2020
PENDING BEFORE THE MUNSIFFS COURT,
VAIKOM
EXHIBIT R4(f) TRUE COPY OF THE COMMISSION REPORT FILED
IN OS NO.51/2020 DATED 13/8/2020
