ELAMMA LUKOSE Vs. FEBIN M. JOSE

JUDGEMENT

(1.) One Joseph and Kuruvila were brothers. Kuruvila had four children, Baby, Jose, Gracy and Elsy Mathew. The 1st petitioner herein is the sister of Kuruvila and the respondents 1 to 3 are the children and wife of Jose, S/o. Kuruvila. Baby instituted O.S.No.209 of 2009 for partitioning the properties of Kuruvila. The 1st petitioner was the 2nd defendant in the said suit and the mother of the 2nd petitioner was the 1st defendant. Jose was arrayed as the 4th defendant in the suit. By judgment dated 11.2.2011, the suit was decreed and the plaintiff Baby was held entitled to 1/12th share out of the plaint schedule properties. Jose was also held entitled to 1/12th share. The counterclaim filed by Jose was dismissed. Jose carried the matter in appeal and by judgment dated 17.3.2017, the appeals were dismissed confirming the judgment and decree of the court below. Since Jose passed away during the pendency of the proceedings, the respondents 1 to 3, who are his legal heirs challenged the judgment and decree by preferring Second Appeal before this Court. It is stated that the passing of the final decree has stayed.

(2.) While the proceedings were pending as aforesaid, the petitioners herein, who were also allotted certain shares, executed a settlement deed in favour of Baby, the plaintiff in the O.S.No.209 of 2009. The petitioners contend that being aggrieved, the respondents are threatening the petitioners with physical harm. They are being prevented from having a free ingress and egress into their own homes and being aggrieved, they have approached the respondents 4 to 6 and lodged a complaint. However, when no action was taken, they have approached this Court, seeking a direction to the respondents 4 to 6 to grant protection to the petitioners from any act of aggression from the side of the party respondents and for a further direction to the police to enquire into the veracity of the complaint submitted by them and to take appropriate action.

(3.) The respondents 1 to 3 have filed a counter. In the said counter, they have stated that the intention of the petitioners is to trespass into the property which is the subject matter of the suit and which matter is pending before this Court. According to the respondents, the suit was instituted by the aforesaid Baby in collusion with the petitioners. It is further stated that the suit was instituted to overcome the family settlement and to appropriate more property than was allotted by the family settlement. It is further contended that the petitioners have no right over the property after the execution of Ext.P1 and in that view of the matter, they have no authority to institute a proceeding of instant nature.