T. Ramadasappa Naidu vs The State Of Telangana
2022 Latest Caselaw 498 Tel

Citation : 2022 Latest Caselaw 498 Tel
Judgement Date : 8 February, 2022

Telangana High Court

T. Ramadasappa Naidu vs The State Of Telangana on 8 February, 2022

Bench: Satish Chandra Sharma, Abhinand Kumar Shavili

  THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                     AND
      THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI



                    WRIT APPEAL No.57 of 2022

JUDGMENT:     (Per the Hon'ble the Chief Justice Satish Chandra Sharma)


      The present writ appeal is arising out of an order dated

24.12.2021     passed        by    the      learned       Single      Judge      in

W.P.No.29885 of 2021.

      The facts of the case reveal that the appellant/writ

petitioner came up before this Court projecting himself to be

the   owner    of    Flat    No.10,        MIG-II,     Phase-II,          H.No.1-8-

1/B20/F10,          second        floor,     APHB,          Baghlingampally,

Hyderabad.     It was stated by him that he is the founder

Chairman and present Chairman of Mundra Agriculture Skill

Development      Multi       State     Cooperative         Society         Limited,

Nallakunta, Hyderabad, and the respondent No.6 is the Vice

Chairman of the said Society. The appellant/writ petitioner

has stated before the learned Single Judge that he has

purchased the subject flat on 31.10.2019 and on 09.11.2021,

the respondent No.6 along with few other persons have

entered into the subject flat and started living there. Meaning

thereby, the appellant/writ petitioner was claiming title of the

flat and it was alleged that the respondent No.6, who has

trespassed, is living in his flat. A criminal case was also

registered in the matter vide Crime No.442 of 2021 under

Sections 427, 448 and 506 IPC and the appellant/writ

petitioner came up before this Court by filing a writ petition.

The appellant/writ petitioner made a prayer to provide police

assistance to evict the respondent No.6, who is allegedly an

encroacher. The learned Single Judge has dismissed the writ

petition keeping into account the stand of the respondent

No.6, who has stated before the learned Single Judge that he

has entered into an agreement of sale and pursuant thereto,

he was inducted into possession of the subject flat.

Paragraphs 4 to 7 of the order passed by the learned

Single Judge are reproduced as under:-

"4. Petitioner is relying on the judgment of the Hon'ble Supreme Court in Poona Ram vs. Moti Ram (D) Th. Lrs. (2019 SCC Online SC 91), whereunder the following observations are made:

"The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond. Salmond on Jurisprudence (12 Edn. at paras 5960) states: "These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature."

5. Learned counsel for the petitioner therefore contended that police are duty bound to evict the illegal trespasser. In the present case, the police have not discharged their duties and grossly violated the law laid down by the Hon'ble Supreme Court in Poona Ram's case (1 supra).

6. Petitioner further relied on the decision of the Delhi High Court in Anju Devi vs. Commissioner of Police and others (1994 IIIAD Delhi 53). However, the principle laid down in this decision is not applicable to the facts of this case. The dispute in Anju Devi's case (2 supra) is a matrimonial dispute between the wife and the husband and

the allegation therein was that the wife was unauthorisedly evicted from the possession of the subject property and the directions were issued to put the petitioner back in possession of the property in question within a week. But, the dispute in the present case is between two strangers.

7. In the counter filed by respondent No.6, it is specifically asserted that he entered into agreement of sale and pursuant thereto, he was inducted into the possession of subject flat. Hence, there are serious disputed questions of fact and this Court cannot adjudicate such disputes. The remedy, if any, for the petitioner lies before the civil Court. Further, it is for the police to conduct investigation in Crime No.442 of 2021. At this point of time, it is premature to say as to which of the offence/s under I.P.C. would attract on the basis of the complaint lodged by the petitioner and whether Section 456 I.P.C. is the appropriate provision. The police cannot be directed to include offence under Section 456 IPC by this Court. Even otherwise, if Section 456 IPC is not included as one of the offences in closure report/charge sheet, the petitioner has got alternative remedy either by filing protest petition or filing a private complaint under Section 200 Cr.P.C. Further, in case, charge sheet is filed without including offence under Section 456 IPC, the petitioner may file appropriate application before the Court below seeking alteration of Section of law. But, writ is not the proper remedy. Hence, there are no merits in the writ petition."

In the considered opinion of this Court, as disputed

questions of fact were involved and the issue of title was in

question, the learned Single Judge has rightly held that the

remedy lies before the civil Court and not before the writ

Court and the disputed questions of fact cannot be resolved

in a writ petition. Therefore, the writ petition has rightly been

dismissed.

In respect of the other aspect that the police has not

registered offences under some other Sections, the learned

Single Judge has rightly arrived at a conclusion that the

appellant/writ petitioner does have a remedy under the Code

of Criminal Procedure (Cr.P.C).