T. Ramadasappa Naidu vs State Of Telangana

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.â€​

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).

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.

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.â€​

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).

This Court does not find any reason to interfere with the order passed by the learned Single Judge.

The writ appeal is accordingly dismissed with a liberty to the appellant/writ petitioner to approach the civil Court and to take shelter of the provisions

of Cr.P.C.

The miscellaneous applications pending, if any, shall stand closed. There shall be no order as to costs.