HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD
****
CIVIL REVISION PETITION NO.888 OF 2020
Between:
Ashok Kumar Jain
....Petitioner
And
Karan Raj and 6 Others
....Respondent
JUDGMENT PRONOUNCED ON: 21.01.2021
THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : No
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_________________________
T.AMARNATH GOUD, J
2
*THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
+ CIVIL REVISION PETITION No.888 OF 2020
% DATED 21st JANUARY, 2021
# Ashok Kumar Jain
... Petitioner
Vs.
$ Karan Raj and 6 Others
.. Respondent
<Gist:
>Head Note:
! Counsel for the Petitioner Sri Eranki Phani Kumar
^Counsel for the Respondent Ms. Ch. Lakshmi Kumari
? CASES REFERRED:
3
HON'BLE SRI JUSTICE T.AMARNATH GOUD
I.A.No.1 of 2020 in CRP No.888 OF 2020
And
CRP No.888 OF 2020
ORDER:
1 This Civil Revision Petition is filed under Section 115 of CPC assailing the order dated 19.02.2020 and consequential docket order dated 20.3.2020 terminating the E.P. by endorsement that warrant is executed in E.P.No.16 of 2018 in O.S.No.27 of 1999 on the file of the Court of the Senior Civil Judge, Medak. 2 The facts that led to the filing of the present Civil Revision Petition, in nutshell, are as follows:
3 The first respondent filed the suit O.S.No.27 of 1999 against six defendants for specific performance of contract in respect of the suit schedule property by virtue of an agreement of sale dated 01.11.1996 which was executed by defendant Nos.1 to 4 therein in favour of the fist respondent / plaintiff. The said suit was decreed ex parte on 28.3.2000. The first respondent filed E.P.No.11 of 2002 in the said suit wherein the trial Court directed the defendant Nos.1 to 4 to execute and register a regular sale deed in respect of the E.P schedule property in his favour within three months from that date and in the event the defendants did not do so, the first respondent / plaintiff is entitled to get the same through Court. Since the J.Drs did not execute sale deed in favour of the first respondent, the first respondent filed E.P.No.11 of 2002 and the Court below, on behalf of the defendants, executed a sale deed in favour of the first respondent in the said E.P. While so, during the pendency of the E.P.11 of 2002, one Sambaiah Nayak filed E.A.No.14 of 2006 in E.P.No.11 of 2002 to raise attachment in 4 the said E.P. to an extent of Ac.15-10 guntas in Sy.No.252 and Ac.0-33 guntas in Sy.No.250 situated at Ramanthapur Village, Yeldurthy Mandal, Medak District wherein the first respondent filed his counter. After adducing evidence, the Court below dismissed the said E.A.No.14 of 2006 on 31.12.2014. Subsequently, the first respondent filed E.A.No.9 of 2017 in E.P.No.11 of 2002 to deliver the possession of the schedule properties to him wherein the trial Court issued warrant to the Field Assistant to deliver the vacant possession of the schedule properties to the first respondent. The Field Assistant submitted his report stating that the warrant could not be executed as there is mango garden and some structures are existing thereon. The first respondent requested the trial Court to grant some time to take further steps to remove structures over the property and also on the ground that his mother-in-law had expired. As there was no progress in the matter despite ample time being given, the trial Court closed the E.P. with liberty to the first respondent to take steps and to file fresh execution petition to deliver possession. Hence the first respondent filed the above E.P. praying the Court to remove the obstacles and the obstructions.
5 In the above E.P No.16 of 2018 there was no contest from the side of the respondents /J.Drs. The executing Court by order dated 19.02.2020 directed the Field Assistant to remove the obstacles / obstructions found in the schedule properties and to deliver vacant possession of the property to the first respondent/D.Hr. The trial Court further directed the Field Assistant to remove any person bound by the decree who may refuse to vacate the schedule properties with the assistance of the 5 Surveyor and police while executing the warrant to the D.Hr. in respect of the schedule property admeasuring Ac.15-10 guntas in Sy.No.250 (Ac.1-30 guntas out of Ac.16-30 guntas) and Sy.No.252 (Ac.13-20 guntas out of Ac.16-20 guntas) situated at Ramanthapur village, Yeldurthy Mandal, Medak District.
6 The Field Assistant visited the schedule property on 18.3.2020 and conducted a panchanama in the presence of first respondent, Mandal Surveyor and police authorities and surveyed the schedule properties and handed over possession of the same to the first respondent, who executed a receipt in token thereof. As seen from the report of the Field Assistant it is to be noted that during the course of measuring the schedule properties, the Field Assistant found a Tin shed, poultry shed and two rooms sheds, which belong to one Ashok Kumar Jain. The Field Assistant also found 930 mango trees, a grave yard with six pillars without roof in 100 sq. yards and opposite to the grave yard a Dargah named as Fazili Dargah.
7 In view of the report filed by the Field Assistant the trial Court, by order dated 20.3.2020, terminated the E.P meaning thereby that the warrant is executed.
8 Questioning the said order dated 19.02.2020 and consequential docket order 20.3.2020 terminating the E.P. the petitioner who is third party to the E.P. filed the present Civil Revision Petition with a petition i.e. I.A.No.1 of 2020 seeking leave to file the Civil Revision Petition.
9 This Court while issuing notice to the first respondent, granted interim stay in I.A.No.2 of 2020 on 01.8.2020 and the said 6 order is being extended from time to time. The first respondent herein filed I.A.No.3 of 2020 seeking to vacate the interim order. 10 The case of the revision petitioner is that he is lawful and absolute owner of agricultural land admeasuring Ac.12.00 guntas in Sy.No.250 and Ac.3-00 guntas in Sy.No.252 total admeasuring Ac.15-00 guntas situated in Ramanthapur village, Yeldurthi Mandal, Medak District which he inherited from his parents. His parents purchased the said property from one Suresh Kumar Jain under registered sale deeds dated 17.4.2000. The vendor of his parents purchased the above said property from the sons of one Khaja Moinuddin, who owned Ac.33-10 guntas in Sy.Nos.250 and
252. He executed six registered gift deeds in favour of his sons each Ac.3-00 guntas. It is his further case that his father developed a mango garden over a portion of the land and raised tin sheds and rooms covering another portion and brought the balance land under cultivation raising seasonal crops. He got a borewell dug and also obtained electricity connection. His father executed his last Will on 15.7.2009 bequeathing the above property in his favour and expired on 26.2.2013, thereupon the revision petitioner became absolute owner of the above referred lands and he is continuing the agricultural activity by employing farm workers and watchmen.
11 It is the further case of the revision petitioner that he came to know about dismissal of a suit in O.S.No.5 of 2008 on the file of the Court below filed by his father seeking cancellation of registered sale deed document Nos.3131 and 3132 of 2007 filed against Mohd. Khaja Moinuddin and his children, who 7 fraudulently executed the said sale deeds even after sale of the lands to his parents' vendor. Having come to know about the dismissal of the suit for default on 04.4.2014, the revision petitioner, being the sole legal heir of his parents, filed a petition before the Court below seeking to restore the said suit the said petitions are pending consideration. The above said sale deeds are much later to the sale deeds in the name of his parents and that neither his parents nor their vendor was ever divested of their title or possession through any decree.
12 It is the further case of the revision petitioner that on 26.6.2020 the first respondent herein illegally tried to interfere with his possession over the lands by showing him the judgment and decree in O.S.No.27 of 1999 against which he preferred E.P.No.16 of 2018 and claimed right over his land. Thereupon, the revision petitioner filed O.S.No.12 of 2020 highlighting the fraud and misrepresentation caused by the respondents in obtaining the decree in O.S.No.27 of 1999 and sought a declaration. In the backdrop of the factual situation he filed I.A.No.1 of 2020 seeking leave to present the Civil Revision Petition No.888 of 2020. 13 The first respondent filed his counter denying the material averments made in the leave petition contending that the petitioner has no locus standi to file the Civil Revision Petition, that the suit O.S.No.12 of 2020 filed by the petitioner is a speculative one and an afterthought, that he purchased Ac.15-10 guntas in Sy.Nos.250 and 252 of Ramanthapur village out of Ac.33-10 guntas from Khaza Moinuddin family, that the said Khaza Moinuddin and his sons executed agreement of sale in his favour for an extent of 8 Ac.15-10 guntas in Sy.Nos.250 and 252 on 01.11.1996 and since the original owners have not come forward to execute sale deed, he filed O.S.No.27 of 1999 for specific performance which was decreed on 28.3.2000 in his favour and it became final. He filed E.P.No.11 of 2000 wherein one Sambaiah Nayak filed third party claim petition E.A.No.14 of 2006 under Order 21 Rule 47 CPC and the same was dismissed on merits on 31.12.2014. Thereafter the Court below executed registered sale deed in his favour on 04.8.2017 and delivered documents on 05.6.2018. Thereafter he filed E.P.No.16 of 2018 for possession and that the Court delivered possession on 19.3.2020 ever since he has been in possession and enjoyment of the same. The petitioner has full knowledge about the pendency of the suit O.S.No.27 of 1999 and E.P.No.11 of 2002 and E.P.No.16 of 2018 and that the petitioner's family and Sambha Nayak who own lands to an extent of Ac.8-00 adjacent to the schedule lands are harassing him by speculative litigation.
14 Heard the learned counsel for the petitioner and the first respondent and perused the material available on record.
15 Now the points for consideration are
i) Whether leave can be granted to the petitioner to file the Civil Revision
Petition;
ii) Whether the order impugned in this Civil Revision Petition is legal and
valid?
iii) When there was no mention about the boundaries of the schedule of property in the suit and in the first E.P No.11 of 2002, can the second E.P. be entertained with boundaries appearing in the E.P. Schedule suddenly?
POINT Nos.1 TO 3 16 The documents filed by the leave petitioner show that the vendor of his parents by name Suresh Kumar Jain purchased the property in Sy.No.252 and Sy.No.250 of Ramanthapur village for a 9 total extent of Ac.15.00 guntas under two sale deeds both dated 22.12.1997 from the sons of late Mohd. Khaja Moinuddin. 17 The first respondent filed the suit O.S.No.27 of 1999 against six defendants for specific performance of contract in respect of the suit schedule property admeasuring Ac.15-10 guntas in Sy.No.250 and 252 of Ramanthapur village by virtue of an agreement of sale dated 01.11.1996 which was executed by defendant Nos.1 to 6 therein, in his favour. The defendants in the said suit are none other than the vendors of the vendor of the petitioner's parents. 18 So, from the above, it is to be seen that both parties are claiming property which fall within the S.Nos.250 and 252 of Ramanthapur village. Neither of the parties state whether S.Nos.250 and 252 comprise the only extent as pleaded by them or whether there is some more extent in those survey numbers. The leave petitioner states that late Khaja Moinuddin owned agricultural land admeasuring Ac.16-30 guntas in Sy.No.250 and Ac.16-20 guntas in Sy.No.252 and total admeasuring Ac.33-10 guntas. It is also his own case that the said Khaja Moinuddin executed six registered gift deeds on 05.12.1995 in favour of his sons. So it has to be decided whether the properties claim by respective parties is one and the same or different but fall within the same survey number.
19 One more point to be noted is that in the schedule of property of the plaint, boundaries of the schedule property were not mentioned and thereafter when the E.P.No.11 of 2002 came to be filed that was not implemented and the same was closed as the E.P. schedule was not containing boundaries of the subject land 10 and that there are mango garden and some structures existing. Interestingly in the present E.P.No.16 of 2018 which was filed after long lapse of 16 years or so, the boundaries to the schedule property suddenly appeared for the first time. Even in the E.P.No.16 of 2018 the D.Hr has not indicated as to how he could procure the boundaries of the subject land for execution when the same were not mentioned in the earlier E.P.No.11 of 2002 and also in the suit O.S.No.27 of 1999. There is no mentioning in the E.P.No.16 of 2018 as how the boundaries have been incorporated in the schedule of property and also in the order of warrant of the Court below. The reasoning of the trial Court with regard to the inclusion of the boundaries in the schedule of property is silent. The trial Court has not taken any action to deal with that aspect. The Field Assistant in his report specifically mentioned that the E.P.No.11 of 2002 could not be executed because the schedule property is in possession of the revision petitioner herein and there are poultry farms and plantations in the schedule property and hence possession could not be taken over and the same could not be handed over to the D.Hr. When the E.P.No.11 of 2002 is silent so also the plaint in O.S.No.27 of 1999 was also silent with regard to the boundaries of the schedule property this Court has no hesitation to hold that the order passed by the trial Court in E.P.No.16 of 2018 is misconceived and erroneous. As seen from the report of the Field Assistant, it can be presumed that only a symbolic possession was given to the first respondent/plaintiff. 20 As seen from the material available on record, the leave petitioner prima facie has interest in the property. Substantial rights of the parties seem to be involved in the case on hand 11 because both parties are claiming title basing on their respective titles. Of course, that cannot be looked into in Civil Revision Petition. A meticulous perusal of series of execution proceedings went on before the trial Court in connection with the decree in O.S.No.27 of 1999 prima facie appears to be not in compliance with the procedure known to law, but in derogation of the provisions stipulated therefor.
21 For all the above reasons and for effective resolution of the issues involved in the matter, the order dated 19.02.2020 and consequential docket order dated 20.3.2020 terminating the E.P. by endorsement that warrant is executed in E.P.No.16 of 2018 in O.S.No.27 of 1999 on the file of the Court of the Senior Civil Judge, Medak is set aside and the E.P.No.16 of 2018 is restored to file to implead the revision petitioner herein as one of the respondents to the said E.P. and take into consideration the objections raised by him in this regard and pass appropriate orders.
22 I.A.No.1 of 2020 is accordingly ordered and consequently the Civil Revision Petition is allowed. No order as to costs. Miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand closed.
__________________________ T. AMARNATH GOUD, J.
Date:21.01.2021.
L.R. Copy to be marked B/o Kvsn