The remedy under Article 226 of the Constitution of India, which is a summary in nature, is not available for such purposes. It is dangerous to grant declaration of title in respect of immovable properties in a proceeding under Article 226 of the Constitution of India, for which remedies under general law are available.


THE HON’BLE THE CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE
AND
THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR

                                                                                    

WRIT APPEAL NO.32 OF 2013



DATED:3.1.2013

Between:                                                                            
Sheik Akbar                                                  …  Appellant

And

The Senior Civil Judge
Gudur
S.P.S.R., Nellore District
and others                                                    … Respondents


































THE HON’BLE THE CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE
AND
THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR

WRIT APPEAL NO.32 OF 2013


JUDGMENT: (per the Hon’ble the Chief Justice Sri Pinaki Chandra Ghose)

          This appeal is directed against the order dt.18.6.2012 passed by the Hon’ble Single Judge, in W.P. (SR) No.56255 of 2012.
          The appellant - petitioner filed the writ petition praying for a Writ of Mandamus to set aside the injunction order dt.16.5.2000 passed by the Court of Additional Senior Civil Judge, Gudur, in partly allowing A.S. No.24 of 1997, which was preferred by respondent Nos.3 to 5 herein, against the judgment and decree dt.26.2.1997 passed by the Court of District Munsif, Sullurpet, in O.S. No.55 of 1991, preferred by respondent Nos.2 to 5 herein, in dismissing the suit.
          The facts of the case briefly are as follows.  Respondent Nos.2 to 5 herein are the plaintiffs who filed O.S. No.55 of 1991 for declaration of the their right of passage through the ‘A.B.C.D.’ site referred in the plaint sketch and for grant of permanent injunction restraining the defendants and their men from in any way meddling or alienating the private street shown as ‘A.B.C.D.’ in the plaint sketch.  It is to be noted that the appellant – writ petitioner, who has come before this Court by filing writ petition, happens to be defendant No.2 in the suit.  It appears that the said suit was dismissed by the trial Court on 26.2.1997 and thereafter an appeal was preferred by the plaintiffs before the Additional Senior Civil Judge, Gudur, and by judgment and decree dt.16.5.2000 the learned Additional Senior Civil Judge, allowed the appeal in part setting aside the judgment and decree of the trial Court so far as grant of permanent injunction in favour of the appellants, against the respondents.  Aggrieved by the judgment and decree passed by the lower appellate Court, the appellant herein, who is second respondent in the first appeal, preferred  a second appeal, being S.A. No.965 of 2001, before this Court and this Court dismissed the said second appeal by judgment dt.29.9.2005, observing that there is no question of law much less any substantial question of law arises for consideration in the second appeal.  The appellant also preferred  review S.A.M.P. No.2829 of 2005 in the said second appeal, seeking review of the judgment passed by this Court in the second appeal, and the said application was also dismissed by the Hon’ble Single Judge, by order dt.20.3.2006.  Subsequent thereto, the appellant - writ petitioner filed the Writ Petition questioning the judgment dt.16.5.2000 passed by the first appellate Court in A.S. No.24 of 1997.  In support of the case of the writ petitioner, before the Hon’ble Single Judge, learned counsel for the appellant – writ petitioner placed reliance on the decision in U.P. State Cooperative Land Development Bank Ltd., v. Chandra Bhan Dubey and others[1].  After noting the said decision, the Hon’ble Single Judge was pleased to reject the writ petition by the impugned order.
          Being aggrieved and dissatisfied with the said order passed by the Hon’ble Single Judge, dt18.6.2012, this writ appeal is filed by the appellant – writ petitioner.
          Learned counsel appearing on behalf of the appellant – writ petitioner tried to impress upon us that the Writ Court has power to question the decree passed by the first appellate Court in the matter.  He further relied upon the decision of a Division Bench of this Court in Lambadi Pedda Bhadru and others v. Mohd. Ali Hussain and others[2] in support of his case.  In the said decision, the Division Bench of this Court has specifically held as under:
          “We are in complete agreement with the submission made by the learned Advocate General that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot go into the intricate questions relating to property rights.  The learned Single Judge relying upon an order purported to have been passed by the then acting Tahsildar, practically declared the title of the respondents–writ petitioners and their predecessor-in-title in respect of the lands in question.  Such a course is not permissible in law.  A regular suit is the appropriate remedy for settlement of disputes relating to the property rights.  The remedy under Article 226 of the Constitution of India, which is a summary in nature, is not available for such purposes.  It is dangerous to grant declaration of title in respect of immovable properties in a proceeding under Article 226 of the Constitution of India, for which remedies under general law are available. 

          Observing as above, the Division Bench also opined that 
disputed questions relating to title cannot be satisfactorily gone into or adjudicated in a writ petition.
          Having regard to the nature of the dispute which has been stated in the suit filed before the trial Court and after adjudication of the issues by the trial Court, in our opinion, writ Court cannot interfere in the matter, at this stage.  

It is to be noted that the judgment and decree passed by the trial Court in the matter was appealed in lower appellate Court and thereafter in the second appellate Court and the respective appellate Courts have adjudicated the issues and thereby the orders which were passed by the trial Court as well as the first appellate Court were merged with the order passed by the High Court in the Second Appeal.  
Therefore, in our opinion, at this stage, Writ Court cannot interfere in the matter when the order of the trial Court has already reached its finality.
          Hence, there is no merit in this writ appeal and the same is accordingly dismissed.  No costs.



________________________
PINAKI CHANDRA GHOSE, CJ




_____________________
                                                                VILAS V. AFZULPURKAR, J    
3.1.2013

 

bnr    













[1] (1999) 1 SCC 741
[2] 20903 (4) ALT 611 (D.B.)

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