CHALLA CHINABABU Vs. KOVILA CHINA SURYANARAYANA

JUDGEMENT

(1.) The Second Appeal was admitted on substantial questions of law raised in grounds 1 to 9 by order dated 9.10.1998. However, the learned counsel representing appellants had pointed out to ground No.6 in particular, which reads as hereunder: Whether the courts below are right and justified in holding the suit to be maintainable when Section 53-A of the T.P.Act can be used as a shield but not as a sword?

(2.) The learned counsel also placed strong reliance on the decision of this Court in MOHD.JAHANGIR v M/S MALLIKHARJUNA CO-OP.HOUSING SOCIETY LTD. REP.BY ITS SECRETARY G.SAMBASIVA RAO1 and also the decision of the Apex Court in PATEL NATVARLAL RUPJI v SHRI KONDH GROUP KHETI VISHAYAK MANDLI AND ANOTHER2. Incidentally, the counsel also pointed out to certain factual controversies and would maintain that in the light of the facts and circumstances of the case, the concurrent findings recorded by both the courts below being unsustainable, the Second Appeal to be allowed.

(3.) Per contra, Sri M.V.Suresh, the counsel representing respondents- plaintiffs would maintain that at no point of time, this objection had been taken and had this objection been taken at the earliest point of time before the court of first instance, respondents-plaintiffs would have chosen to institute an appropriate suit claiming the relief of specific performance also and having delayed the matter for substantially a long time permitting the appellants to put forth such contentions at the stage of second appeal would not be just and proper. The counsel also would maintain that even otherwise the factum of possession being the predominant consideration to be considered in a suit for mere injunction and since such possession not to be disturbed except in accordance with law, the possession of the plaintiffs to be protected atleast to the said limited extent unless and otherwise the possession is disturbed in accordance with law.