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2006 DIGILAW 722 (CAL)

ANUP SAMANTA v. STATE OF WEST BENGAL

2006-11-21

BHASKAR BHATTACHARYA, PRABUDDHA SANKAR BANERJEE

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B. BHATTACHARYA, J. ( 1 ) THIS mandamus appeal is at the instance of an unsuccessful writ petitioner and is directed against an order dated 21st July, 2006 passed by a learned single Judge, by which His Lordship refused to entertain the writ application on the ground that the dispute involved in the writ petition was of civil in nature. ( 2 ) BEING dissatisfied the writ petitioner has come up with the present mandamus appeal. ( 3 ) THE appellant filed the aforesaid petition alleging the private respondents forcibly entered into the disputed property of which the appellant is the owner on 22nd April, 2005, as a result in the past, he approached this Court in writ jurisdiction which was disposed of by a learned single Judge thereby directing the Officer in charge of the concerned police station to drive away the private respondent and to put the appellant into possession. According to the appellant, pursuant to such order he got possession. On 14th July, 2003 the private respondent again entered into the disputed property by dispossessing the writ petitioner and thereafter filed a suit being suit No. 36 of 2003, and on 30th April, 2004 such suit has been ultimately dismissed on contest. ( 4 ) ACCORDING to the appellant subsequently he lodged a complaint before the Officer in charge of the local police station on 18th June, 2004 informing the police authority that civil suit being Title Suit No. 36 of 2003 filed by the private respondent had been dismissed and therefore step may be taken to drive out the private respondent as he was in illegal occupation. ( 5 ) ON the allegation that the police authority did not take any action on the basis of such letter written by the appellant, the appellant filed the second writ application out of which the present mandamus appeal arises. ( 6 ) IN the said writ application the appellant prayed for direction upon the Officer in charge of the concerned police station for taking steps so that the appellant may reside in the property from which he has been dispossessed. ( 7 ) AS indicated above, the learned single Judge did not entertain the said writ application on the ground that the dispute involved herein was of civil in nature. ( 8 ) BEING dissatisfied, the writ petitioner has come up with the present mandamus appeal. ( 7 ) AS indicated above, the learned single Judge did not entertain the said writ application on the ground that the dispute involved herein was of civil in nature. ( 8 ) BEING dissatisfied, the writ petitioner has come up with the present mandamus appeal. ( 9 ) AFTER hearing the learned counsel apearing for the parties and after going through the materials on record we find that even on the basis of the averment of the appellant in the writ petition, he was forcibly dispossessed in the year 2003 and after dismissal of the civil suit filed by the private respondent he approached the police authority for restoring possession. ( 10 ) ACCORDING to the writ petitioner it was the duty of the police authority to put him back into possession and such inaction on the part of the police authority has infringed his legal right over the property. ( 11 ) WE are afraid, we are not at all convinced by such submission. Even if a person who is owner of the property is dispossessed by a trespasser having no title thereon, appropriate remedy lies by filing a civil suit for recovery of possession on the basis of title. The law is equally settled that if a trespasser in settled possession of a property is evicted by lawful owner other than the due process of law such trespasser can approach the Civil Court by taking aid of section 6 of the Specific Relief Act and the Court will restore possession to the trespasser if such an application is filed within six months from the the date of dispossession notwithstanding the fact that the person who dispossessed him was the real owner. ( 12 ) FROM the aforesaid fact it is clear that Legislature in this Country did not confer power upon the police authority to decide title of the property and the citizens are given right to approach the Civil Court for deciding this type of disputes. If the suit filed by the private respondent is really dismissed, the appellant should file appropriate civil suit for recovery of possession on the basis of his title and the dismissal of the suit filed by the private respondent will operate as res judicata in his suit and the Court will grant decree on the basis of title if so proved. ( 13 ) BUT he had no right to approach the police for getting back possession and by not answering the request of the appellant, the police authority did not commit any illegality. ( 14 ) WE, therefore, find that the learned single Judge in the fact of the present case has rightly refused to entertain the writ application as it would have been an abuse of process of law, if such writ application was entertained. ( 15 ) WE, thus, find no merit in this mandamus appeal and the same is therefore, dismissed. ( 16 ) WE make it clear that we have not otherwise gone into the question of title of the respective parties and our observation indicated above are made on the basis of statement made by the appellant in the writ application without hearing the private respondent and such observation will not be binding upon the learned Civil Court, if any appeal is preferred against the order of dismissal of the suit filed by the private respondent or in the future suit, if filed by the present appellant, against the private respondent. If any such suit is filed the same will be disposed of in accordance with law. ( 17 ) WE, therefore, dismissed this mandamus appeal with cost assessed at 300 G. Ms to be paid by the appellant to the State respondents. Urgent xerox certified copy of this order, if applied for, be given to the parties expeditiously. Appeal dismissed.