The petitioners had filed O.S.No.318/1997 for

partition and separate possession of their legitimate

share in suit propert. The said suit came to be decreed

on 19.11.2007 allotting certain share in favour of the

petitioners.

Thereafter,

the

petitioners

filed

FDP

No.25/2009 for partition and possession of their share in

the suit property by metes and bounds. In the said FDP

proceedings, the petitioners visited the suit property

3

alongwith the Court Commissioner so as to measure and

bifurcate the suit property.

2.

Such being the case, the second respondent

lodged FIR alleging that the petitioners have trespassed

into the property in question. The jurisdictional police

registered FIR against the petitioners for the offence

punishable under Sections 447, 504 and 506 read with

Section 34 of IPC. The police after investigation filed the

charge sheet against the petitioners for the said offences.

Being aggrieved by the same, this writ petition is filed.

3.

Learned counsel for the petitioners submits

that the petitioners visited the property along with the

Court Commissioner in pursuance of the order passed by

the FDP Court and as such the allegation made by the

second respondent that the petitioners have criminally

trespassed

into

the

property

in

question

is

not

sustainable in law.

4

4. On the other hand, learned counsel appearing

for the second respondent submits that the decree

passed in favour of the petitioners has not attained

finality and the same is pending consideration in

RSA.NO.1600/2018 and 956/2016. Hence, he submits

that the police have rightly filed charge sheet against the

petitioners.

5. I have considered the submissions made by

learned counsel for the parties.

6.

It is undisputed that the petitioners had filed

the suit for partition and in the said suit, the petitioners

were allotted certain share and in pursuance of the same

a final decree was passed for partitioning of suit property

by the metes and bounds. In pursuance of the order

passed by the FDP Court, petitioners along with the Court

Commissioner visited the property in question for

measuring and bifurcation of the same, in terms of the

preliminary decree. When such being the case the second

respondent who is not the owner of the suit property but

5

son-in-law of the judgment debtor lodged FIR alleging

that the petitioners have trespassed the property in

question.

7.

Admittedly, the petitioners have been allotted

share in the property in question and as such it cannot

be said that the petitioners criminally trespassed into the

property belonging to the mother-in-law of the second

respondent. Futher, the FDP proceedings initiated by the

petitioners have been registered in pursuance to the

preliminary decree. The suit property in question has

been partitioned and the petitioners have been put in

possession of their respective share in the suit property.

Hence, FIR lodged by the second respondent alleging

that the petitioners criminally trespassed into the

property in question is without any substance, since the

petitioners were co-owners of the property and the police

ignoring this material fact have filed charge sheet against

the petitioners for the offences punishable under Sections

6

447, 504 and 506 read with Section 34 of IPC which is

not sustainable in law. Accordingly, I pass the following:

O R D E R

i)

Criminal petition is allowed;

ii)

The

impugned

proceedings

in

C.C.No.3629/2017 pending on the file of JMFC

(III

Court),

Mangalore,

D.K.,

is

hereby

quashed.

Sd/-

JUDGE

RKA