Shaffique,J This writ petition is filed seeking for a writ of mandamus directing respondents 2 and 3 to provide adequate police protection to the life of the petitioner and his property covered by Exts.P1 to P3 judgments and for a direction to respondents 2 and 3 to evict respondents 4 to 6 from the building covered by Ext.P4 execution proceedings.
2. The facts involved in the above writ petition are as under:
The petitioner filed a suit O.S.No.406/1996 against party respondents 4 to 6 for recovery of possession and damages for use and occupation before the Munsiff Court, Kasargode. The suit was decreed by judgment dated 16/03/2004 directing the party respondents 4 to 6 herein to surrender vacant possession of A schedule house to the plaintiff within one month from the date of decree and also to pay Rs.50/- per month as damages for use and occupation till date of such surrender. Respondents 4 to 6 preferred an appeal as A.S.No.78/2004 before the Subordinate Judges Court, Kasargode and by judgment dated 15/02/2007, the appeal came to be dismissed confirming the judgment and decree of the trial court. Respondents 4 to 6 further preferred a second appeal R.S.A.No.797/2007 before this Court and by judgment dated 21/10/2009, this Court dismissed the second appeal. Pursuant to the dismissal of the second appeal, the petitioner preferred Execution Petition No.255/2009 before the Munsiff's court, Kasargode. The Court directed delivery of property. The description of property to be delivered is shown as building bearing No.XII/297 of Kumbala Grama Panchayath situated in RS No.98/2A1 of Bambrana village of Kasaragod Taluk and District. By Ext.P4, the property was taken delivery by the petitioner as evident from the delivery receipt and delivery account prepared by the concerned officer in the presence of witnesses. Delivery was effected on 10/08/2010. It is the contention of the petitioner that after taking delivery of the property, taking advantage of the absence of the petitioner, respondents 4 to 6 trespassed into the building, unlawfully opened the lock and occupied the same. Petitioner submitted Ext.P5 representation to the 2nd respondent on 24/08/2012 complaining about the trespass into the building by respondents 4 to 6 after the property was taken delivery by the petitioner through a decree of civil court. Since no action has been taken by the police, the writ petition is filed. According to the petitioner, respondents 4 to 6, having been evicted by due process of law, they have no right to trespass into the building and thereafter occupy the same which clearly amounts to offences under Sections 441 and 442 of the Indian Penal Code and the police is bound to evict them and restore possession to the petitioner.
3. Statement is filed by the 3rd respondent stating that petitioner along with the Ameen had gone to the property for implementing the order of the Munsiff's court on 10/08/2010. Only symbolic possession of the property was taken over, since some political leaders and social activists interfered in the issue when they were trying to physically evict the respondents. Hence a settlement was arrived at with the petitioner and he agreed not to evict respondents 4 to 6 from the premises. The mediators persuaded the petitioner for not insisting for physical delivery of the property since the 5th respondent was an 80 year old lady. It is stated that the judgment of the Munsiff's court has not been implemented physically.
4. Counter affidavit is filed by the 3rd respondent on 17/06/2013 in which the Sub Inspector of Police has reiterated the facts mentioned in the statement filed earlier. According to him, the provisions of Sections 441 and 442 of IPC has no application, as they continued in possession.
5. Counter affidavit is filed by respondents 4 to 6 in which it is inter alia stated that the delivery effected is only a paper delivery or symbolic delivery as explained by the Supreme Court in Balwant Narayanan Bhagde v.
Bhagwat [1976(1) SCC 700]. It is contended that the question of possession is a matter to be adjudicated by the Execution Court under Section 47 of C.P.C. Reference is also made to the judgment of the Supreme Court in Ghan Shyam Das Gupta v. Anant Kumar Sinha and Others [1991 (4) SCC 379]. It is further contended that the petitioner has no right or interest in the property and the sale deed is a forgery. The respondents also contended that the 5th respondent was physically present along with her husband, the 4th respondent, in the disputed building and had obstructed the delivery. Further it is indicated that the 4th respondent had informed the 5th respondent that the dispute with the writ petitioner has been settled and that no execution petition will be filed in the matter.
6. Having regard to these factual situations, the short question to be considered is whether the relief prayed can be granted in this writ petition.
7. Heard learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing on behalf of respondents 4 to 6.
8. According to the petitioner, materials available on record clearly indicate that the property was taken delivery by the petitioner. Ext.P4 series evidences the same and also the fact that the Execution Court has closed the Execution Petition taking note of the delivery receipt and account submitted by the Ameen of Court. The contentions urged by respondents 4 to 6 were that they have obstructed to the delivery. The police officer, who has accompanied the Ameen for delivering the property, submits that it was only a paper delivery and actual physical possession was not handed over. This fact is disputed by the petitioner.
9. The argument of the learned counsel for respondents 4 to 6, relying upon the judgment of the Supreme Court as aforesaid, is that when delivery is obstructed and physical delivery is not taken, the remedy of the petitioner is only to approach the Civil court for appropriate reliefs. We cannot agree with the aforesaid submission.
10. In Balwant Narayanan Bhagde's case (supra), the Supreme Court was considering the question as to what is meant by taking possession of land under Section 16 or 17(1) of the Land Acquisition Act, 1894. It is observed that the Code of Civil Procedure does not prescribe that, in respect of a particular property, there can be two modes of giving possession to the decree holder either 'symbolic' or 'actual'. It is further held that if the property is in occupation of the judgment debtor or someone on his behalf, the possession shall be given, if necessary, by removing the judgment debtor and placing the decree holder in occupation of the same, whereas if the property is of such a nature that the judgment debtor cannot be in actual occupation, in instances where the property is in the possession of a tenant, the only mode of giving possession is by proclaiming on the spot that possession has been given to the decree holder. It is further observed that even if the delivery is symbolical possession or actual, the possession or the right and interest of the judgment debtor is involved, it completely dispossess him. In Ghan Shyam Das Gupta (supra), the Supreme Court was considering the scope of interference of the High Court under Article 226 of the Constitution of India. It is held that the remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a Civil Court after denying defences legitimately open in such action.
11. Though the principle of law laid down in the above cases are well settled, the question to be looked into in these cases is whether on the facts of a particular case, this Court should interfere and direct police protection to the petitioners to evict respondents 4 to 6. In P.R. Murlidharan v. Swami Dharmananda Theertha Padar, [(2006) 4 SCC 501] Sri. P.K. Balasubrananyan, J in his concurring judgment held as under:
“19. A writ for “police protection” so-called, has
only a limited scope, as, when the court is approached for protection of rights declared by a decree or by an order passed by a civil court. It cannot be extended to cases where rights have not been determined either finally by the civil court or, at least at an interlocutory stage in an unambiguous manner, and then too in furtherance of the decree or order.”
12. This is an instance where the civil rights of the parties have been determined, the property was delivered, the Ameen who has effected delivery of the property has reported to have taken physical possession of the property. On this basis, the Court has closed the execution petition as well. There is no reason to doubt the bona fides of the said statement and no contention can be urged by the respondents against the delivery receipts or the order passed by the Civil Court. The party respondents' contention is that they have obstructed delivery. If it was a case of obstruction, the petitioner could have approached the Execution Court for removal of obstruction, in which event Execution Court would have passed appropriate orders in the application submitted by the petitioner. No such event has happened. Therefore we are of the view that the version of respondents 4 to 6 are not believable and it is clear that they have trespassed into the property of the petitioner after they were evicted from the said building. In such an event, there is nothing wrong in the petitioner approaching the police for necessary assistance to restore possession of the building.
13. Perusal of the records clearly indicates that the petitioner had obtained a decree which had become final after three stages of litigation by judgment dated 21/10/2009 of this Court in R.S.A.No.797/2009. The suit was filed in 1996. Despite the decree being passed and executed, if the defendants again trespassed into the property, the police is bound to interfere in the matter and restore possession of the property to the petitioner. Petitioner has obtained a decree of Civil court and after delivery of property in execution proceedings the respondents have trespassed into the said property which is in gross violation of the decree passed. Persons who do not obey the judgment of the Civil court cannot insist that the petitioner should again be driven to the Civil court for recovery of possession of his property. Under such circumstances, we are of the view that the writ petition is to be allowed.
In the result, this writ petition is allowed with the following directions:
Respondents 2 and 3 are directed to provide adequate police protection to the petitioner to restore possession of the building in terms of Ext.P4 and they shall also ensure maintenance of law and order situation and if necessary, by evicting respondents 4 to 6 by force.
(sd/-) (ASHOK BHUSHAN, ACTING CHIEF JUSTICE) jsr (sd/-) (A.M.SHAFFIQUE, JUDGE)