Kerala High Court
Padinharayil Balan vs State Of Kerala on 23 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021/2ND ASWINA, 1943
WP(C)NO.8989 OF 2021
PETITIONERS:
1 PADINHARAYIL BALAN,
AGED 80 YEARS
S/O.KOTTAN,PUTHIYA VEETTIL HOUSE,
MAMMAKKUNNU,P.O.KADAMBOOR,KANNUR DISTRICT.
2 PADINHARAYIL LAKSHMI,
AGED 64 YEARS
D/O.KOTTAN,PUTHIYA VEETTIL HOUSE,
MAMMAKKUNNU,P.O.KADAMBOOR,
KANNUR DISTRICT.
3 RIJESH.P.O,
AGED 32 YEARS
S/O.LATE P.BHARATHAN,RESIDING AT
'THEJAS',MAMMAKKUNNU,MUZHAPPILANGAD AMSOM
DESOM,MAMMAKKUNNU DESOM,
P.O.KADAMBUR,KANNUR DISTRICT-670663.
4 SREEJITH.O,
AGED 31 YEARS
S/O.LATE P.BHARATHAN,RESIDING AT
'THEJAS',MAMMAKUNNU,MUZHAPPILANGAD
AMSOM,MAMMAKKUNNU DESOM,P.O.KADAMBUR,
KANNUR DISTRICT-670663.
5 RATHNAVATHI.O,
AGED 56 YEARS
W/O.LATE P.BHARATHAN,RESIDING AT
'THEJAS',MAMMAKUNNU,MUZHAPPILANGAD
AMSOM,MAMMAKKUNNU DESOM,P.O.KADAMBUR,
KANNUR DISTRICT-670663.
BY ADVS.
K.C.SANTHOSHKUMAR
SMT.K.K.CHANDRALEKHA
SMT.ANUPAMA JOHNY
SMT.P.MAYA
SMT.K.S.SUDHA
wp(c) 8989/2021 2
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HOME DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM-
695001.
2 DISTRICT POLICE CHIEF,
TALAP.P.O,KANNUR-670002.
3 THE STATION HOUSE OFFICER,
EDAKKADU POLICE STATION,EDAKKAD.P.O,
KANNUR DISTRICT-670662.
4 LAKSHMI
D/O.LATE KUMARAN MADAYAN,NEAR CHALA
MADAPPURA,CHEMBILODE AMSOM,
CHALA KIZHAKKEKKARA DESOM,P.O.CHALA,
KANNUR DISTRICT-670006.
5 BINDU,
D/O.YESODA,NEAR CHALA MADAPPURA,
CHEMBILODE AMSOM,CHALA KIZHAKKEKKARA
DESOM,P.O.CHALA,KANNUR DISTRICT-670006.
6 PRATHEESHAN,
S/O.YESODA,NEAR CHALA MADAPPURA,
CHEMBILODE AMSOM,CHALA KIZHAKKEKKARA
DESOM,P.O.CHALA,KANNUR DISTRICT-670006.
BY ADVS.
GOVERNMENT PLEADER
C.P.PEETHAMBARAN
SRI. E.C.BINEESH - GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
wp(c) 8989/2021 3
DEVAN RAMACHANDRAN, J.
===========================
WP(c)No.8989 of 2021
===========================
Dated this the 24th day of September, 2021
JUDGMENT
The petitioners have approached this Court seeking a direction to
respondents 2 and 3 to afford them adequate protection, for enabling
them to carry out the repair as well as the maintenance work of the
"Madappura" and "Kazhakappura", as has been sought for by them
through Ext.P6 complaint preferred before the said respondents.
2. The petitioners say that even though they are in possession of
the afore-mentioned structures and being entitled to maintain it and
cause repairs on it, respondents 4 to 6 are illegally obstructing the same.
They say that in such circumstances, they preferred Ext.P7 petition
seeking protection before the third respondent; but that since no action
has been taken on it, they have been constrained to approach this Court
through this writ petition.
3. Before I move forward, I must record that when this matter was
considered on an earlier occasion, the learned counsel appearing for
respondents 4 to 6 - Sri.C.P.Peethambaran, submitted that, contrary to
the allegations in this writ petition, his clients are in physical possession
of the "Madappura" and "Kazhakappura". Today, through I.A.No.1 of
2021, he has placed on record photographs of his clients in possession of
the said structures.
4. Further, Sri.E.C.Bineesh, the learned Government Pleader,
submitted that the fourth respondent had visited the structures in
question, under the earlier directions of this Court, and has filed a report,
wherein, the party respondents have been found to be residing therein as
on that date.
5. I, therefore, asked Sri.K.C.Santhosh Kumar, the learned counsel
for the petitioners, how his clients can use an order of police protection
of this Court, to obtain eviction of the petitioners from the "Madappura"
and "Kazhakappura", to which he replied saying that, even as per the
earlier legal proceedings - which is evident from the plaint and other
pleadings - all the co-owners of the property, including the petitioners
and party respondents, had agreed that the "Madappura" and
"Kazhakappura" will be kept in common.
6. Sri.K.C.Santhosh Kumar further asserted that the party
respondents cannot claim possession of the afore mentioned structures,
since, in the counter affidavit filed by the fourth respondent on
11.6.2021, there is no such averment and therefore, that even assuming
that they are presently residing therein, it could have been managed by
them after filing of the said counter affidavit. He, reiteratingly submitted
that, whatever be the submissions of the party respondents, they are not
in possession of the "Madappura" or the "Kazhakappura" and that,
therefore, it will not stop this Court from granting an order of protection,
as prayed for by his clients.
7. I am afraid that I cannot find favour with the above submissions
of Sri.K.C.Santhosh Kumar because, prima facie, from the photographs
produced on record as Exts.R4(d) and R4(g) and the report of the fourth
respondent, the party respondents appear to be in possession of the
"Madappura" and "Kazhakappura". When I say this, it may not be
misunderstood that this Court has affirmatively found so, but am
recording my prima facie opinion based on the photographs and report of
the 4th respondent.
8. In the above circumstances, as long as the petitioners are not
able to dispel the suspicion of this Court that the party respondents are
in possession of the "Madappura" and "Kazhakappura", through a process
of law, it would not be justified for this Court to grant any relief as sought
for, in this writ petition.
9. In the above circumstances, I close this writ petition without
issuing any further orders; however, leaving full liberty to the petitioners
to proceed against the party respondents in this case, as per law,
including by approaching a competent Civil Court.
This writ petition is thus disposed of.
Sd/-
DEVAN RAMACHANDRAN,
JUDGE
lgk
APPENDIX OF WP(C) 8989/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE DECREE AND JUDGMENT
DATED 29.01.1999 IN O.S.NO.520/1995 ON
THE FILE OF THE ADDITIONAL SUBORDINATE
JUDGE,THALASSERY.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED
09.03.2016 IN A.S.NO.548/1999 ON THE OF
THIS HONOURABLE COURT
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED
27.03.2017 IN PETITION FOR SPECIAL LEAVE
TO APPEAL(CIVIL)BEARING NO.29489/2016
EXHIBIT P4 TRUE COPY OF THE DELIVERY ORDER AND THE
RECEIPT DATED 12.11.2019 ON THE FILE OF
THE SUBORDINATE JUDGE,KANNUR.
EXHIBIT P5 TRUE COPY OF THE RECEIPT FOR PAYMENT OF
BASIC TAX IN THE NAME OF THE PETITIONER
NO.1 ON BEHALF OF THE TARWAD
EXHIBIT P6 TRUE COPY OF THE COMPLAINT DATED
10.10.2020 SUBMITTED BEFORE THE 3RD
RESPONDENT
EXHIBIT P7 TRUE COPY OF THE REQUEST DATED 27.03.2021
SUBMITTED BEFORE THE 2ND RESPONDENT
EXHIBIT P8 TRUE COPY OF THE ACKNOWLEDGEMENT ISSUED
BY THE 2ND RESPONDENT.
RESPONDENT EXHIBITS
Exhibit R4 D TRUE PHOTOGRAPH SHOW IN 4TH RESPONDENT,
HER SISTER YASODHA AND HER DAUGHTER BINDU
ARERESING IN THE BUILDING IN QUESTION
Exhibit R4 E TRUE COPY OF THE DEATH CERTIFICATE OF
BINDU ISSUED FROM REGISTRAR OF BIRTHS AND
DEATHS KANNUR CORPORATION
Exhibit R4 F TRUE COPY OF THE DEATH CERTIFICATE OF
BINDU ISSUED FROM REGISTRAR OF BIRTHS AND
DEATH KANNUR CORPORATION
Exhibit RG TRUE COPY SHOWING THAT 4TH RESPONDENT IS
ENAGGED IN THE KITCHEN OF THE MADAPPURA
Exhibit RH TRUE COPY OF THE LATEST ELECTICITY BILL
DATED 9.9.2021 OF THE MADAPPURA
