PETITIONERS: 1. ubhash Shlivasfav, aged abcut 57 yaars, Sfo lat Shii Moti1al Shrivastav Shyam Das Sahu, aged aboui 56 yeérs, sic late sEm Daym Das Sahu Vishnu Pamky, aged about 55 yaars, Sio late Shri Gorelal Pandéy Nandlal Kariya, aged about 68 years, Sio hate Shri Mamlal Kariya' Ashish Yadav, aged about 30 years, S/o Shn' Ram Gopal Yadav Shailendra Gupta, aged about 32 years, Sjo late Shri Ramdas Guota Sitaram Yadav, aged about 58 years, Sjo Shri Bhagwati Prasad Yadav A11 petitioners in adverse possession of Pakka Makan (House) situated at plot No.34, sheet No.20/C, Kb. No.524!2, 531, area 147 Square -Meter, Gaxljpara, Durg (CG) ,a“ -Versus~ l. RESPONDENTS: Hon’bie Eighth Additional District Judge, Fast Track Court, Durg (CG) Central Bank of India, Regiona} Office, Raipur, Through Branch Manager, Ceutral Bank of India, GE. Road, Durg, Tah. 85 District Durg (CG} Satya Prakash Sahu, S/ o Laxmi Narayan Sahu, Propritor, Satya Machinery and Electricals, Ganjpara, Durg (CG) Smt‘ Saraswati Sahu, W] o Laxmi Narayan Sahu, Rf o Ganjpara, Durg (CG) HIGH COURT OF CHHANESGAREE A? BILASPUR W.P.{C.) No.651 of 20 10 S , O . Municipal Corporation, Durg (CG) through 0E0. Present: Shri V. G. Tamaskar, counsel for the petitioners. Single Bench: Hon’ble Shri Dhirendxa Mishra, J. ORAL ORDER (17—5—20 10} 1. The petjh'oners have flled the instant petition and prayed for the following reliefs:- e “That the Hon’ble Court be pleased to quash possession notice dated 26.12.2009 Annexure P-l and Auction Notice Annexure P-2 by issuing writ of certioraii or any other writ or writs deemed fit in the interest of justice. o That the respondents may be restrained from dispossessing the House in Question by issuing appropriate writ of Mandamus. ° That the Hon’ble Court may mould the relief as and when required. 0 That the Hon’ble Court be pleased to issue any other writ or writs order or orders direction or directions deemed tit in the interest ofjustice.” 2. Learned counsel for the petitioners submitted that the petitioners are in adverse possession of dinerent portions of the house situated at Ganjpara, Durg from 1967 to 1984 as detailed in the petition and they are also paying water tax, house tax etc to respondent No.5 Municipal Corpomtion, Durg, however, the house in question has been put to auction by learned 8th Additional District Judge (FTC) in Civil Suit No3—A/2000 vide auction notice dated 25—2—2010 in collusion with respondents No.3 and 4. Respondents No.3 and 4 are not the real owners of the disputed house and respondent No.2 in collusion with respondents No.3 and 4 has obtained a decree by suppressing the facturn of adverse possession of the petitioners by practicing fraud. Reliance is placed on decision of the Gujarat High Court in the matter of Dena Bank Vs. Shri Sihor Nagaxik Sahakaxi Bank Ltd. 85 VOIS {AIR 2008 GUJARAT 110}. x CO . H€ard 1€amed colmsel for the petitioncrs. From perusal of the documents available on record, it appears that the property in question was put to auciioo by auction notice of Anaexure— P/2 in execution of decree passed m Civil Suit No.3—A] 2000 against respoudents No3 and 4‘ From. perusal of possession notice of Annexure-Pll issued by the authorized oiiieer of respondent No.2 bank, it appears that respondent No.2 after taking possession of the disputed property has cautioned the borrowers/guarantors and the pubiic at large not to deal with the property. The petitioners without approaching the executing Court and raising their objections as provided under Order 21 of the CPC have straightway approached this Court for setting aside the auction notice of Annexure—P/2 and possession notice of immovable property of Annexure-P/ l. In the matter of Shri Sihor Nagarik Sahakari Bank Ltd, 8r, ors. (Supra), the petitioner, a nationalized bank, had’taken on rent the premises from the borrower since 1986 and was regularly paying rent. Said tenancy was created long before the borrower mortgaged the property to secure debt. The creditor bank was aware of the above fact that the petitioner was tenant of the part of the secured. assets. The. creditor bank released the loan in favour of the borrower in the year 1996 after mortgaging the building. When the borrower did not pay the rent installment regularly, a proceeding under the Securitization Act was initiated and possession notice was issued under Section 18 (4) of the Act. The petitioner bank was directed to pay rent to the creditor bank and accordingly, petitioner started paying the rent to the creditor bank instead of original landlord. Thereafter, creditor bank with a purpose of taking vacant possession of the premises approached the District Magistrate underSection 14 of the Securitization Act, who directed that actual physical possession of the entire premises including the portion which was in possession of the petitioner bank be handed over to the creditor bank. A civil suit was filed by the petitioner bank and in the said civil suit, his application for eX-parte interim injunction was rejected. He also approached the Debt Recovery Tribunal under Section 17(1) of the Act and that was also dismissed as not maintainable. In these circumstances, a writ petition challenging the order of the’ (Divil Court, the‘order of the Collector passed under Section 14 and the ordar of the Debt Recovexy Tn'bunal was filed. The High Court hald that secured creditor camot extinguish tenancy and right to take possession would not include right to extinguish preexisting tenancv. . However, in the instant case, as already noted above, no such factual scenario exists. The petitioners have straightway approached this Court without approaching the civil Court which passed the decree in favour of the creditor bank. The question Whether the petitioners are in adverse possession of the disputed premises and thereby they have perfected their title over the property by adverse possession is a question of fact that can be decided in a properly constituted civil suit or in a enquiry that may be conducted in objection to execution of the decree in favour of respondent No.2 Creditor bank. . The instant petition is devoid of substance, the same- deserves to be and is accordingly dismissed as not maintainable. Sd/- Dhirendra Mishra Judge