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2014 Supreme(AP) 285
HIGH COURT OF ANDHRA PRADESH
M. SATYANARAYANA MURTHY, J.
M/s. Kumar Brothers & Company
Versus
A.P. Housing Board, Rep. by its Chairman & Another
C.C.C.A. No.123 of 1995
Decided On : 28-02-2014
Advocate Appeared:
For the Petitioner:M. Papa Reddy, Advocate.
For the Respondents:T. Ramulu, Advocate.
When possession of plaintiff is unlawful, plaintiff is not entitled to claim bare injunction and has to be non-suited.
Headnote:(A) Civil Procedure Code, 1908-Section 9-Ouster of jurisdiction of Civil Court-If there is any express or implied bar on jurisdiction of Civil Court, Civil Court cannot take cognizance of suit in a civil suit---In absence of any implied or express bar, Civil Court can try all suits of civil nature.
(B) Andhra Pradesh Housing Board Act, 1956---Sections 52, 52-A and 53---Civil Procedure Code, 1908-Section 9-Ouster of jurisdiction of Civil Court-There is a clear bar to entertain any suit by any Civil Court against the order passed by the competent authority, bar is express bar ousting jurisdiction of Civil Court---Civil Court has no jurisdiction to pass any order in any suit or proceeding filed questioning order passed or action taken by the authorities under the Act of 1956 and no injunction shall be granted against Housing Board, since, any action taken by the authority under provisions of the Act is only in implementation of the provisions of the Act---Order of eviction passed by the competent authority is only in exercise of power conferred on him under Sections 52 and 53 of the Act of 1956---In view of the bar under Section 57, Civil Court has no jurisdiction to pass any injunction order restraining Housing Board from interfering with the possession and enjoyment of schedule property by plaintiff.
Result-Appeal dismissed.
1. The unsuccessful plaintiff, M/s. Kumar Brother & Company, in O.S.No.137 of 1980 on the file of the Court of II Additional Judge, City Civil Court, Hyderabad (for short, 'the trial Court'), preferred this appeal against the impugned decree and judgment of the trial Court dated 08-11-1994, wherein the Court negated the relief of permanent injunction restraining the 1st defendant, their employees, servants, etc. from interfering with the possession and enjoyment of the plaintiff or taking up any construction in 206.18 square yards of land out of old S.Nos.74 and 75 of Bagh Limgampally Village, now numbered as 3-2-1/1, 3-2-1/1/1 to 3-2-1/1/3, Kacheguda, Hyderabad. The appellant was the plaintiff and the respondents were the defendants and they will hereinafter be referred as arrayed before the trial Court for convenience.
2. The plaintiff purchased an extent of 1309 square yards equivalent to 1100 square meters under an agreement of sale dated 24-10-1978 from the 2nd defendant, Smt. Naga Krishna Maheswari, and took delivery of possession. The property is part of S.Nos.74 and 75 of Bagh Limgampally Village and subsequently numbered as 3-2-1/1, 3-2-1/1/1 to 3-2-1/1/3, Kacheguda Station Road, Hyderabad. Subsequently, the 2nd defendant executed a supplemental agreement modifying the original agreement. The plaintiff in total purchased 3,931 square yards from different vendors including the 2nd defendant to construct a cinema theater in the entire extent of land and all those plots are contiguous to each other.
The plaintiff already obtained a registered sale deed for an extent of 1,300 square yards and took possession of the property as part performance of the agreement of sale. The 2nd defendant is the owner of the property by virtue of registered document of the year 1966.
The plaintiff is in possession of entire land measuring 3,931 square yards in his own right. Out of it, 1,309 square yards of land was purchased under agreement of sale from the 2nd defendant. However, the 1st defendant is claiming 206.18 square yards of land out of the same, as if it belongs to the 1st defendant-A.P. Housing Board. The 1st defendant initiated proceedings under Sections 52, 52-A and 53 of Andhra Pradesh Housing Board Act, 1956 (for short, 'the Act of 1956'), claiming recovery of possession of 206.18 square yards of land in case No.59/CA1/79, served notice on 26-04-1979. The plaintiff filed counter/objections to the said notice and thereafter, issued a notice under Section 68 of the Act of 1956 on 22-08-1979.
It is specifically contended by the plaintiff that the land measuring 206.18 square yards out of 1,309 square yards purchased from the 2nd defendant does not belong to the 1st defendant and the 2nd defendant alone is the owner of the said property. By virtue of agreement of sale, the plaintiff is entitled to enjoy the said property. Thus, the plaintiff alone is entitled to claim right over the entire property of an extent of 206.18 square yards shown in the plaint plan.
The statutory remedy under the provisions of the Act of 1956 is not adequate and the authorities under the Act of 1956 shall not grant an injunction but the Civil Court alone is competent to grant the relief of injunction claimed by the plaintiff herein. Hence, the Civil Court alone has got inherent jurisdiction. The plaintiff further contended that the plaintiff's predecessor in title and after purchase by the plaintiff, the property is in their possession and enjoyment without let or hindrance, thereby perfected plaintiff's title to the property by way of adverse possession.
The proceedings initiated under Sections 52, 52-A and 53 of the Act of 1956 are untenable and the claim of the 1st defendant is not based on any material and thereby cannot be permitted to take possession of the property under the provisions of the Act of 1956.
Since the plaintiff is in possession of the property, he is entitled to continue in possession of the property, being the purc
