Telangana High Court

Sri. Khatighar Shankar Rao vs The State Of Telangana on 22 January, 2024

        * HON'BLE SRI JUSTICE C.V. BHASKAR REDDY

               + WRIT PETITION No.7683 of 2022

% Date: 22.01.2024

Between:

Khatighar Shankar Rao
and others.                                            ... Petitioners

                                AND
The State of Telangana
Rep by Home Secretary, Secretariat Hyderabad
and others.
                                                     ... Respondents

! Counsel for the Petitioners    : Sri D.V.Sitarama Murthy,
                                   learned Senior Counsel for
                                   Sri Aruva Raghuram Mahadev

^ Counsel for Respondent Nos.1 to 4 : Govt. Pleader for Home

^ Counsel for Respondent Nos.5,6,7,9,11 & 13 : Sri C. Raghu,
                                      learned Senior Counsel for
                                      Sri Lingampally Ravinder

^ Counsel for Respondent No.8: ----

^ Counsel for Respondent No.10: Sri Manoj Kumar Akula

^ Counsel for Respondent No.12:       -----

^ Counsel for Respondent No.14: Sri Sreenivasa Rao Velivela

> HEAD NOTE:

? Cases referred

  1) AIR 1954 SC 415
  2) (2003) 6 SCC 230
  3) (1992) 4 SCC 61
                                         ::2::


        THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY

                    WRIT PETITION No.7683 of 2022
ORDER:

This Writ Petition, under Article 226 of the Constitution of

India, is filed by the petitioners seeking the following reliefs:

"to issue a Writ of Mandamus or any other appropriate Writ, order, or direction

i. Declaring the action of the Respondent no 2 to 4 and more particularly Respondent No.4 in dispossessing the Petitioners by use of force from land admeasuring 1 Acres 38 guntas in Survey No.773, situated at Kandi Village, Sangareddy Mandal, Medak District, Telangana and aiding non-official Respondents to enter into the property pending the civil dispute as illegal, arbitrary and in violation of Article 14, 21 and 300A of the constitution and

ii. Consequently, direct the Respondents 1 to 4 to restore the possession of land admeasuring 1 Acres 38 Guntas in Survey No.773, situated at Kandi Village, Sangareddy Mandal, Medak District, Telangana to the Petitioners by removing the encroachers and unsocial elements and

iii. Direct the Respondents not to interfere with the Petitioner's peaceful possession of the subject property and to pass such other order or orders which this Hon'ble court may deem fit and proper in the circumstances of the case.

iv. Direct an independent enquiry be conducted by a District Judge against the illegal and high-handed action of the Respondent no.4."

2. The brief facts of the case that are necessary for disposal of

the writ petition are stated hereunder:

The petitioners and the respondent Nos.5 and 6 claim to be

Directors of M/s. Silamkot Finance Private Limited, Begumbazar,

Hyderabad, a company incorporated under the provisions of

Companies Act. The said company also owns land admeasuring

Ac.1-38gs in Sy.No.773, situated at Kandi Village, Sangareddy ::3::

Mandal, Medak District, having purchased the same under

registered sale deed dated 13.08.1999 bearing document

No.3190/1999. It is the case of petitioners that respondent Nos.5

and 6 without consent of remaining Directors, on a fabricated Board

Resolution dated 14.07.2004, sold the subject land in favour of

family members of respondent Nos.5 and 6 by executing a

document dated 29.11.2004 bearing No.13104/2004, who in turn

sold the subject property in favour of some of their relatives under

registered sale deed dated 09.03.2005 bearing document

No.2654/2005. It is further case of the petitioners that having come

to know about the fraudulent activity and illegal sale of land

belonging to the Company, petitioners filed a complaint on the file of

II Addl. Chief Metropolitan Magistrate, Hyderabad. On being

referred, the said complaint was registered as a crime and after

completion of investigation, charge sheet was filed for the offences

punishable under Sections 408, 420, 423, 424, 468, 471, 201 r/w

34 of IPC vide C.C.No.100 of 2011. It is further case of the

petitioners that the said C.C. was dismissed vide judgment dated

26.06.2018. Aggrieved by the same, Criminal Appeal No.368/2020

was preferred on the file of this Court and the same is pending for

adjudication. In the meanwhile, representing the company,

petitioner No.5 filed a suit vide O.S.No.337/2006 on the file of

Senior Civil Judge, at Sangareddy against Respondent Nos.5, 6, 10, ::4::

11, 12 and 13 and others, seeking to declare the sale deeds and the

partition deed executed by the respondents on the company

property as null and void and the same is not binding on the

petitioners. It is stated by the petitioners that the said suit was

dismissed vide Judgment and decree dated 02.06.2016. Aggrieved

by the same, A.S.No.81/2018 was filed on the file of Principal

District Judge, Medak at Sangareddy and the same is pending. It is

further case of the petitioners that notwithstanding the execution of

sale deeds by the respondent Nos.5 and 6 in favour of respondent

No.10, 13, 14 and Nagari Indumathi (wife of respondent No.12) and

dismissal of the suit, they are in continuous possession of the

subject property as evidenced by the Advocate Commissioner's

report dated 25.01.2021 in I.A.No.2091 of 2020 in I.A No.1708 of

2020 in O.S.No.584 of 2020 on the file of Principal Junior Civil

Judge, Sangareddy. It is further case of the petitioners that they are

in continuous and exclusive possession of the subject land having

constructed two rooms and one hut and they also employed a

watchman for protecting the property. Taking advantage of Covid

pandemic, respondents Nos.5 to 9 started interfering with the

peaceful possession of the petitioners. On 29.08.2020 the

respondent Nos.5 to 9 along with some unsocial elements visited the

suit property and tried to manhandle the Watchman/Supervisor of

the petitioners and tried to demolish the structures. The petitioners ::5::

with great difficulty, resisted the illegal interference and got lodged a

complaint through their supervisor against the respondent No.5, 6,

9 to 13 and their other family members and acting on the said

complaint, a case in Crime No.216/2020 was registered for the

offences under Sections 341, 447, 323, 504, 506 r/w 34 of IPC on

30.08.2020 and after completion of investigation, charge sheet was

filed on the file of II Class Executive Magistrate at Sangareddy and

the same is pending. It is further case of the petitioners that as a

counterblast to their complaint, Respondent No.10 also filed a false

complaint against the petitioners and the same was registered as a

case in Crime No.222 of 2020 for the offences under Sections 447

and 506 r/w 149 IPC. It is also further case of the petitioners that

respondents filed a suit for injunction vide O.S.No.584/2020 on the

file of Principal Junior Civil Judge, Sangareddy, against the

petitioners and in the said suit, I.A.No.2091/2020 was filed for

appointment of advocate Commissioner to note down the physical

features of the schedule property and the same was allowed vide

order dated 09.12.2020 and an Advocate Commissioner was

appointed to note down the physical features of the property.

Questioning the same, the unofficial respondents herein filed a Civil

Revision Petition No.1378 of 2020 on the file of this Court and the

same was dismissed vide order dated 07.01.2021. It is the specific

case of the petitioners that the Advocate Commissioner, who visited ::6::

the suit schedule property, has filed a report on 25.01.2021 stating

that petitioners are in possession of the suit schedule property by

constructing a room, compound wall and also got electricity

connection. It is further case of the petitioners that the report filed

by the Advocate Commissioner and documents annexed to the

report viz., property tax receipts, electricity bills, permission granted

by the Gram Panchayat and internet connection reveals their

possession over the subject property. However, the respondent

Nos.5 to 9, who are not in possession of the property, in highhanded

manner, with the aid and assistance of respondent Nos.1 to 4 are

making efforts to dispossess the petitioners from the subject

property. Questioning the said action, the petitioners were

constrained to file Writ Petition No.14850 of 2020 on the file of this

Court and this Court vide order dated 07.09.2020 disposed of the

said writ petition recording the statement of the police that they are

not interfering with the civil disputes between the inter se parties.

The grievance of the petitioners is that respondent No.4 in active

collusion with respondent Nos.5 to 9 is interfering with the

possession of the petitioners and aiding the respondent Nos.5 to 9

to dispossess the petitioners from the subject property. Hence the

writ petition.

3. A counter affidavit has been filed by the respondent No.9

deposing on behalf of himself and also on behalf of respondent ::7::

Nos.5, 6, 7, 11 and 13. It is stated that M/s. Silamkot Finance

Private Limited company was struck off from register of companies.

The said company does not exist as on date. The petitioners herein

do not have any right to maintain the present writ petition alleging

that the subject property belongs to the said company. It is the

case of the respondents that the property admeasuring Ac.1-38 gts

in Sy.No.773/A of Kandi Village and Mandal was sold by M/s.

Silamkot Finance Company under registered Sale Deed Document

No.13104/2004 dated 29.11.2004 in favour of Nagari Suryaprakash

& two others, who in turn, sold the same to respondent No.10 and

others under a registered Sale Deed dated 09.03.2005 bearing

document No.2654/2005. It is further stated that a Partition Deed

dated 08.11.2006 vide document No.25990/2006 was executed

between the vendees under the said Document No.2654/2005

dividing the property admeasuring Ac.1-38 gts by metes and

bounds into four equal shares allotting each share of Ac.0-19.5

guntas to each of the parties therein. Thereafter Smt. Indumathi

executed a Gift Deed dated 24.09.2015 in respect of her share of

Ac.0-19.5 guntas in favour of respondent No.9 vide document

No.17325/2015. It is further stated that the said company has

instituted a suit vide OS No.337/2006 on the file of Senior Civil

Judge, Sangareddy, against the Respondent Nos.5, 6, 10, 11, 12

and 13 and others, seeking to declare the partition deed dated ::8::

08.11.2006 bearing Document No.25990/2006, as null and void

and for setting aside the Sale Deed dated 29.11.2004 bearing

Document No.13104/2004, and also the Sale Deed dated

09.03.2005 bearing document No.2654/2005. The said suit was

dismissed vide Judgment and decree dated 02.06.2016. Challenging

the same, an appeal was filed vide AS No.81/2018 on the file of

District Court, Sangareddy and the same is pending. It is stated

that no interim orders were granted in the said appeal. It is further

stated that while the things stood thus, though the company is

struck off from the register of Companies, the petitioners have been

sending antisocial elements to disturb the peaceful possession and

enjoyment of respondents over the subject property. It is further

stated that in the process of grabbing the property, the petitioners

approached the electricity department and applied for electricity

connection. Questioning the granting of power supply connection,

the respondent Nos.9, 10, 13 and 14 filed Writ Petition No.2164 of

2021 on the file of this Court and this Court vide order dated

04.03.2022 disposed of the said writ petition directing the electricity

department to pass necessary orders for disconnecting the power

supply connection obtained by the petitioners illegally. It is the

specific case of the respondents that petitioners with a malafide

intention on one pretext or other, are frequently interfering with the

peaceful possession of the respondents and keeping the said motive ::9::

have filed the present writ petition. The present writ petition filed by

the petitioners is devoid of merits and the same is liable to be

dismissed in limine.

4. The respondent No.14 filed implead petition claiming to be

purchaser of part of subject property under registered sale deed

dated 09.03.2005 vide document No.2654/2005. She also claims to

be co-sharer of the land admeasuring Ac.0-19.5gts in Sy.No.773/A,

under partition deed dated 08.11.2006 vide document

No.25990/2006. As such she is impleaded in this writ petition as

respondent No.14 vide order dated 06.06.2022 passed by this Court

in I.A.No.2 of 2022. The respondent No.14 also filed her counter

with the similar averments that are made in the counter affidavit

filed by the respondent No.9.

5. The respondent No.10, who is also one of the purchasers

under registered sale deed dated 09.03.2005 bearing document

No.2654/2005 and claiming to be co-sharer of the land

admeasuring Ac.0-19.5 gts in Sy.No.773/A, under partition deed

dated 08.11.2006 vide document No.25990/2006, also filed his

counter with the similar averments that are made in the counter

affidavit filed by the respondent No.9.

6. The respondent No.4 filed counter affidavit on behalf of

himself and also on behalf of respondent Nos.1 to 3 stating that ::10::

basing on the complaint lodged by Mohammed Afroz, Supervisor,

working under the control of petitioner No.1, registered a case in

Crime No.216/2020 for the offences under Sections 447, 323, 504,

506 r/w 34 IPC and after completion of investigation, he filed charge

sheet on the file of II Class Executive Magistrate, at Sangareddy

against the respondent No.5 for the offence under Section 323 IPC

and the same is pending for trial. It is further stated by the

respondent No.4 that basing on the complaint lodged by respondent

No.10, he registered a case in Crime No.222/2020 for the offences

under Sections 447, 506, 504 r/w 149 IPC and after conducting

investigation, filed final report on the file of Additional Judicial

Magistrate of First Class, at Sangareddy, as "lack of evidence". It is

further stated that respondent No.5 has also lodged a complaint

dated 31.01.2022 on the file of respondent No.5 and acting on the

said complaint, a case in Crime No.37/2022 was registered for the

offences under Sections 447, 427, 504, 506 r/w 149 IPC and the

same is pending for investigation. It is further stated that except

registration of the criminal cases and proceeding with the

investigation, in accordance with law, the police never interfered

with the civil disputes and ultimately prayed to dismiss the writ

petition.

7. Considered the submissions of the learned counsel for the

respective parties and perused the record.

::11::

8. Sri D.V.Sitarama Murthy, learned Senior Counsel

representing Sri Aruva Raghuram Mahadev, learned counsel for the

petitioners has submitted that respondent Nos.5 to 9 by playing

fraud and creating fraudulent documents i.e, Sale Deed dated

29.11.2004 bearing Document No.13104/2004; and the Sale Deed

dated 09.03.2005 bearing document No.2654/2005; and partition

deed dated 08.11.2006 bearing document No.25990/2006 and the

gift deed dated 24.09.2015 bearing document No.17325/2015, are

trying to dispossess the petitioners from the subject property. It is

further submitted that even though the suit vide O.S.No.337/2006

instituted by the petitioners was dismissed vide judgment and

decree dated 02.06.2016 and challenging the same, an appeal suit

vide A.S.No.81/2018 has been filed and pending, the petitioners are

continuing in possession of the subject property and they cannot be

dispossessed without following due process of law. It is also

submitted by the learned Senior Counsel that in the suit vide

O.S.No.584/2020 instituted by the respondents, the petitioner No.1

filed I.A.No.2091/2020 seeking to appoint advocate Commissioner

to note down the physical features of the schedule property therein

and the same was allowed vide order dated 09.12.2020 and the

Advocate Commissioner filed his report, stating that the petitioners

are in possession of the subject property. It is further submitted

that even if the petitioners had no right to remain in the property, ::12::

they cannot be dispossessed except by following due process of law.

The learned Senior Counsel has placed much reliance on the report

of the Advocate Commissioner filed in I.A.No.2091 of 2020 in I.A

No.1708 of 2020 in O.S.No.584 of 2020 on the file of Principal

Junior Civil Judge, Sangareddy and the documents enclosed to the

said report. It is contended by the learned Senior Counsel that

respondent Nos.1 to 4 are not having any power or authority to

provide aid and assistance to the respondent Nos.5 to 9 in taking

possession as the respondents dispossessed the petitioners illegally.

The petitioners are entitled for restoration of the possession. In

support of his submissions, the learned Senior Counsel relied upon

the decision in Wazir Chand vs. State of Himachal Pradesh and

the District Magistrate, Chamba 1 and ultimately prayed to allow

the Writ Petition as prayed for.

9. On the other hand, Sri C.Raghu, learned Senior Counsel

appearing for Sri Lingampally Ravinder, learned counsel for the

respondent Nos.5, 6, 7, 9, 11 and 13 has vehemently contended

that petitioners are not having any right to maintain the present

writ petition alleging that the subject property belongs to the

M/s.Silamkot Finance Private Limited, Begum Bazar, Hyderabad, as

the said company was struck off from the register of companies. It is

further argued that the respondent Nos.10, 13, 14 and Smt. Nagari

AIR 1954 SC 415 ::13::

Indumathi, wife of respondent No.12 purchased the property

admeasuring Ac.1-38gts in Sy.No.773/A, situated at Kandi Village,

Sangareddy Mandal, from the authorised persons of M/s.Silamkot

Finance Private Limited, Begum Bazar, Hyderabad, under registered

sale deed dated 09.03.2005 bearing document No.2654/2005. The

respondent Nos.10, 13, 14 and Smt. Nagari Indumathi, wife of

respondent No.12 have executed Partition Deed dated 08.11.2006

bearing document No.25990/2006 dividing the property

admeasuring Ac.1-38 gts by metes and bounds into four equal

shares allotting each Ac.0-19.5 guntas. Thereafter said Smt.

Indumathi executed a registered Gift Deed dated 24.09.2015

bearing document No.17325/2015 in respect of her share of land

admeasuring Ac.0-19.5 guntas in favour of respondent No.9. Thus

the respondent Nos.9, 10, 13 and 14 have become absolute owners

of the total land admeasuring Ac.1-38gts in Sy.No.773/A, situated

at Kandi Village, Sangareddy. The learned Senior Counsel

strenuously argued that the petitioners claiming right, title and

possession in respect of the very same property, have instituted suit

vide O.S.No.337/2006 on the file of Senior Civil Judge, Sangareddy,

against the Respondent Nos.5, 6, 10, 11, 12 and 13 and others, to

declare the partition deed dated 08.11.2006 bearing Document

No.25990/2006, as null and void and for setting aside the Sale

Deed dated 29.11.2004 bearing Document No.13104/2004, and ::14::

also the Sale Deed dated 09.03.2005 bearing document

No.2654/2005 and after contest, the said suit was dismissed vide

Judgment and decree dated 02.06.2016. Aggrieved by the same, the

petitioners preferred an appeal vide AS No.81/2018 on the file of

District Court, Sangareddy District and no interim orders were

passed in the said appeal. It is argued that in the absence of staying

the operation of the judgment and decree dated 02.06.2016 passed

in O.S.No.337 of 2006, the petitioners are not entitled to claim any

right, title and possession over the suit schedule property. The

learned Senior Counsel further argued that suppressing the said

fact, the petitioners have approached electricity department and

obtained electricity connection to the suit schedule property and

questioning the granting of power supply, the respondent Nos.9, 10,

13 and 14 filed Writ Petition No.2164/2021 on the file of this Court

and this Court vide order dated 04.03.2022 directed the electricity

department to pass necessary orders for disconnecting the power

supply to the suit schedule property. The learned Senior Counsel

relied upon the decision of the Hon'ble Supreme Court in Dwarka

Prasad Agarwal v. B.D. Agarwal 2 and submitted that the High

Court while exercising a power of judicial review is concerned with

illegality, irrationality and procedural impropriety of an order

passed by the State or a statutory authority and the remedy

(2003) 6 SCC 230 ::15::

under Article 226 of the Constitution of India cannot be invoked for

resolution of a private disputes. The petitioners are seeking to

redeliver possession of the property, for which rights of the parties

have already been declared and therefore, the present writ petition

is misconceived and liable to be dismissed.

10. Sri Manor Kumar Akula, learned counsel appearing for the

respondent No.10 and Sri Sreenivasa Rao Velivela, learned counsel

appearing for the respondent No.14, adopted the arguments

advanced by Sri C.Raghu, learned Senior Counsel and prayed this

Court to dismiss the writ petition.

11. The learned Assistant Government Pleader for Home

appearing for the respondent Nos.1 to 4 has submitted that case

and counter cases were registered against the petitioners as well as

unofficial respondents on the complaints lodged by them and the

respondents-police except registering the cases and conducting

investigation, in accordance with law, have not interfered with the

civil disputes between the petitioners and the unofficial respondents

and ultimately prayed this Court to dismiss the writ petition.

12. This Court has carefully examined the rival submissions of

the parties. The petitioners and the unofficial respondents are

claiming rights in respect of the land admeasuring Ac.1-38gts in

Sy.No.773, situated at Kandi Village, Sangareddy Mandal, Medak ::16::

District, and inviting this Court to decide the question relating to

right, title and possession of the said property. In view of the serious

disputes between the petitioners and unofficial respondents with

regard to right, title and possession of the subject property, the writ

petition is not the remedy to resolve the inter se disputes between

the parties, in the absence of examining the documents relating to

title and possession of the respective parties. The questions as to,

who is the owner of the land in question; whether the petitioners are

in possession of the subject property and, if so, from which date,

how and in what circumstances, they claim to be in possession;

whether their possession could be regarded as legal or not qua its

real owner, etc., are some of the material questions which arose for

consideration in this writ petition. These questions, in my view, are

pure questions of fact, which could be answered one way or the

other only by the civil court in a properly constituted civil suit and

on the basis of the evidence adduced by the parties but not in a writ

petition filed under Article 226 of the Constitution of India. It has

been consistently held by this Court and the Hon'ble Supreme

Court that a regular suit is the appropriate remedy for settlement of

the disputes relating to property rights between the private persons.

::17::

13. In Mohan Pandey vs. Usha Rani Rajgaria 3 the Hon'ble

Supreme Court observed as follows:

"6: xxxx..... It has repeatedly been held by this Court as also by various High Courts that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between private persons and that the remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged. And in such a case, the Court will issue appropriate direction to the authority concerned. If the real grievance of the respondent is against the initiation of criminal proceedings, and the orders passed and steps taken thereon, she must avail of the remedy under the general law including the Criminal Procedure Code. The High Court cannot allow the constitutional jurisdiction to be used for deciding disputes, for which remedies, under the general law, civil or criminal, are available. It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant. The jurisdiction is special and extraordinary and should not be exercised casually or lightly." (emphasis supplied).

14. In Dwarka Prasad Agarwal v. B.D. Agarwal, (supra), the

Hon'ble Supreme Court observed as follows:

"The High Court while exercising a power of judicial review is concerned with illegality, irrationality and procedural impropriety of an order passed by the State or a statutory authority. Remedy under Article 226 of the Constitution of India cannot be invoked for resolution of a private law dispute as contra distinguished from a dispute involving public law character. It is also well-settled that a writ remedy is not available for resolution of a property or a title dispute."

It is well settled law that this Court is not having jurisdiction to

delve into the disputes and come to a conclusion with regard to

(1992) 4 SCC 61 ::18::

right, title and possession of the parties in the absence of

determining the validity or otherwise of their entitlement being

decided at the first instance.

15. In the case of Wazir Chand vs. State of Himachal Pradesh

and the District Magistrate, Chamba (supra), relied upon by the

petitioners, the Hon'ble Supreme Court was dealing with the power

of Judicial Commissioner in withholding the goods, which have

been seized and the Hon'ble Supreme Court had issued a writ

directing the restoration of goods seized by the police to the

petitioners therein. The facts in the present case are totally different

and the same are distinguishable. In the instant case, respondent

No.4 has filed a counter affidavit stating that except registration of

the criminal cases and conducting investigation and inspecting the

scene of offence, the police never interfered with the peaceful

possession of either of the parties. Therefore, the aforesaid decision

is not applicable to the facts and circumstances of the present case.

Further, it is not the case of the petitioners that what was infringed

by their unlawful eviction/dispossession, was a fundamental right

guaranteed under Article 21 of the Constitution of India and what is

allegedly infringed is a right guaranteed under Article 300A of the

Constitution of India. While exercising the jurisdiction under Article

226 of the Constitution of India, in cases of illegal dispossession,

the Court has to examine whether any of the rights of the ::19::

petitioners guaranteed under Article 21 of the Constitution of India

are infringed or the rights relating to property for which remedies

are available before the Civil Court are infringed by not following

due process of law.

16. In view of the above discussion, this Court is not inclined to

exercise its discretion under Article 226 of the Constitution of India,

for granting relief as sought for and the Writ Petition filed by the

petitioners is devoid of merits and the same is liable to be

dismissed.