WA/2012/2013 of T.V.Subba rao, Vs The Estate Officer, on 31 December 2013

Conclusion

HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDHON’BLE SRI JUSTICE SANJAY KUMAR

W.A.No.2012 of 2013

Date: 31.12.2013

Between:

T.V.Subba Rao

.....Appellant

AND

The Estate Officer, represented by DeputyChief Personal Manager, Industrial Relationsand Welfare, Hyderabad and others

...Respondents

HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDHON’BLE SRI JUSTICE SANJAY KUMAR

W.A.No.2012 of 2013

JUDGMENT:(per Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta )

This appeal is sought to be preferred against the judgmentand order of the learned single Judge dated 31.10.2013, by whichthe writ petition has been dismissed.

The brief fact relevant to the writ petition as well as preferringthe appeal is set out hereunder:

The writ petitioner is residing in premises bearing No.3-6-186,Hyderguda, Hyderabad, for more than 30 years. He came intopossession not as an owner thereof. He was a tenant to one SriSriram Bhagwan Das, who alleged to have orally gifted the saidproperty to the petitioner and four others, as they have renderedservices to him. There are income tax dues as against theaforesaid Sri Sriram Bhagwan Das and in order to recover thesame, the Income Tax authorities held public auction and that theproperty was sold on 22.09.1971. Even after sale, the writ petitionerand four others were residing in the said premises. Thereafter,respondent No.2 issued a notice on 10.06.1986 terminating thetenancy and demanding arrears of rent and delivery of possessionby 31.07.1986. As sale has been confirmed, respondent No.2became the owner of the property and thus at the most, the writpetitioner became the tenant under respondent No.2. As the writpetitioner did not vacate the premises, respondent No.2 filed a civilsuit being O.S.No.2720 of 1987 and the same was decreed on09.04.1991 and that the appeal preferred by the writ petitioneragainst the said judgment was allowed on 11.08.1994. Thereafter, the petitioner filed a suit being O.S.No.1032 of 1995 for perpetualinjunction against respondent No.2 and the said suit was decreed on05.02.1998 and the decree was also confirmed by the appellateCourt and, therefore, the said decree and judgment has becomefinal. Thereafter, proceedings were initiated under Section 4 (1) ofthe Andhra Pradesh Public Premises (Eviction of UnauthorizedOccupants) Act, 1968. Before the Estate Officer (RespondentNo.1), it was contended that the writ petitioner has perfected histitle by adverse possession and as such the writ petitioner is not anunauthorized occupant. Thereafter, the Estate Officer passedorders declaring the petitioner as an unauthorized occupant of thesubject property and ordered eviction from the property.

In this context, the learned single Judge held that when it wasfound on fact that the writ petitioner was an unauthorized occupant,the writ Court did not interfere with the same and hence it wasdismissed.

Learned Counsel for the appellant argues that theappellant/writ petitioner has become owner of the property byadverse possession.

We do not consider the aforesaid aspect. The plea ofadverse possession taken before the first authority or appellateauthority as well as before the writ Court cannot be entertained atall. The writ petitioner never put up such plea when he filed a suitfor perpetual injunction and the Court granted the relief to the effectthat the writ petitioner could not be evicted without due process oflaw. Therefore, the writ petitioner is evicted if the proper procedureis followed. This plea could have been taken in earlier suit. For nottaking so, the writ petitioner’s plea is hit by constructive res judicataengrafted in Explanation IV of Section 11 of the Code of CivilProcedure, which is set out hereunder:

“Any matter which might and ought to have been made ground of defence or attack in such former suitshall be deemed to have been a matter directly andsubstantially in issue in such suit.”

Therefore, the plea of adverse possession cannot beentertained at all. On fact, it was found that the writ petitioner is anunauthorized occupant of the subject property by the first authorityand the appellate authority and thus the writ Court cannot substitutethe fact-finding as it is not the case of perversity in recalling thesaid fact-finding. We do not find any reason to interfere with thejudgment and order of the learned single Judge.

Accordingly, the writ appeal is dismissed. Miscellaneouspetitions, if any, pending shall also stand closed. No order as tocosts.

___________________

K.J. SENGUPTA, CJ

__________________

SANJAY

KUMAR, J

31.12.2013 Gsn