Andhra Pradesh High Court - Amravati

Nagireddy Ravindra Reddy vs Bijjivemula Lakshmi Devi on 7 December, 2022

        HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

              CIVIL REVISION PETITION No.1867 of 2022

   Between:

   Nagireddy Ravindra Reddy, S/o late Nagireddy
   Sreenivasulu Reddy, aged about 49 years, r/o
   D.No.16/3-186, new D.No.16/8/160, Cross
   Road, Ramalingapuram, Nellore-2, SPSR
   Nellore District.
                                                     ... Petitioner.
                 Versus

   Bujjivemula Lakshmi Devi, W/o B.Sesha
   Reddy,   aged   about     47   years,    R/o
   D.No.11/33/2, Devarakonda village & Mandal,
   Mahaboob Nagar District and four others.

                                                 ... Respondents.


Counsel for the petitioner             : Sri C.Subodh
Counsel for respondent No.1            : Sri T.D.Pani Kumar

                              ORDER

Defendant No.1 in the suit filed the above revision

against the order dated 13.07.2022 in I.A.No.403 of 2022 in

O.S.No.67 of 2013 on the file of I Additional District Judge,

Nellore.

2. Plaintiff filed suit O.S.No.67 of 2013 to declare that the

plaintiff is the absolute owner of plaint schedule property by

virtue of registered sale deed dated 17.09.2010 executed by

3rd defendant in her favour and the registered settlement

deed dated 07.07.2011 vide document No.8977 of 2011 and

document No.9389 of 2011 dated 14.07.2011 executed by

defendants 5 and 6 in favour of defendants 2 and 1

respectively are illegal and void and not binding on the

plaintiff and for grant of consequential perpetual injunction.

3. The averments in the plaint, in brief, are that plaintiff

purchased the schedule property from 3rd defendant under a

registered sale deed 17.09.2010 and has been in possession

and enjoyment of plaint schedule property; that plaintiff and

her husband intended to construct a residential building in

the plaint schedule site; that defendants 1 and 2 are sons of

defendants 5 and 6 constituted an unlawful assembly and

indulging in grabbing the lands of others; defendants 1 and 2

in July, 2011 along with their men tried to trespass into the

schedule property by removing the compound wall; that the

plaintiff's vendor, 3rd defendant noticed and informed the

same to the plaintiff; that plaintiff, her husband along with

neighbours protested the highhanded action; that plaintiff

filed suit O.S.No.480 of 2011 against the defendants 1 and 2

and the same is pending; that defendants 1 and 2 and their

parents defendants 5 and 6 jointly executed registered

settlement deed dated 07.07.2011 in favour of 2nd defendant

for an extent of 40 Ankanams 45 square feet, out of plaint

schedule property and also executed another registered

settlement deed dated 14.07.2011 in favour of 1st defendant

for an extent of 40 Ankanams 45 square feet, out of plaint

schedule property; that 3rd defendant got the property under

registered exchange deed dated 28.03.2009 with Nellore

Municipal Corporation, 4th defendant in the suit; that plaintiff

issued legal notice to 3rd defendant marking a copy to other

defendants and filed the suit for the reliefs stated supra.

4. 2nd Defendant filed written statement and contended

interalia that plaint schedule property is shown as open

space for public purpose in layout L.P.No.847 of 1992; that

vendors of plaintiff, plaintiff and other created sham and

nominal registered sale deeds bearing Nos.11654 of 2010 and

8376 of 2010 and got filed suit O.S.No.480 of 2011; that as

per layout L.P.No.847 of 1992, Nagireddy Srinivasulu Reddy,

Vajja Adinarayana and Magham Subrahmanyam are the joint

owners for the above open space; that the alleged exchange

deed is invalid document, basing on which, no title is derived;

that vendor of plaintiff has no right, title and interest over the

open space of an extent of Ac.0.25 cents in S.Nos.1220, 1221

and 1222; that exchange deed dated 28.03.2009 itself is

invalid and hence, the plaintiff could not get valid title under

the registered sale deed dated 17.09.2010; that 2nd defendant

is also one of the joint owners of layout along with defendants

1, 3, 5 and 6; that Magham Subrahmanyam along with

defendants 5 and 6 executed registered settlement deeds

dated 07.07.2011 and 14.07.2011 in favour of defendants 1

and 2 and eventually prayed the Court to dismiss the suit.

5. Pending the suit, defendants 1, 2 and 6 filed I.A.No.403

of 2022 under Order XVI Rule 6 r/w Section 151 of CPC to

summon the rejection proposal vide L.Dis.No.7244 of 2003

dated 05.03.2004 for exchanging the open space of Ac.0.25

cents in S.Nos.1220, 1221 and 1222 of Nellore Bit-II shown

in Ex.B-1 DTCP plan bearing No.84 of 1992 with the site in

S.No.2004 of Nellore Bit-II from the office of Director of Town

and Country Planning (DTCP), Government of Andhra

Pradesh.

6. In the affidavit filed in support of the petition, it was

contended interalia that layout was approved videNo.84 of

1992 and an extent of Ac.0.25 cents was left over as open

space for public purpose; that Ex.A-2 exchange deed bearing

No.2877 of 2009 dated 28.03.2009 and Ex.A-3 sale deed

bearing No.11654 of 2010 dated 17.09.2010 are created and

fabricated documents; that on an application made by 2nd

defendant, DTCP issued letter No.12291/2011/V.Cell(RTI)

dated 09.03.2012 furnishing copy of letter bearing

Lr.R.Dis.No.4856/2005 dated 06.08.2005 rejecting the

proposal vide Lr.R.Dis.No.7244/2003 dated 05.03.2004 for

exchanging the land in S.No.1120, 1221, 1222 shown as

open space under DTCP layout plan No.84 of 1992, which

includes plaint schedule property with the land in S.No.2004

of Nellore Bit-II on the ground that open space should not be

used for any other purpose; that defendants 3 and 4 colluded

together and fabricated Ex.A-2 registered exchange deed and

thereafter, plaintiff and 3rd defendant colluded and created

Ex.A-3 registered sale deed; that in order to prove the case

summoning of rejection of proposal, examination of proposal

vide L.Dis.No.7244 of 2003 dated 05.03.2004 for exchanging

the open space of Ac.0.25 cents from the office of DTCP is

essential and hence filed the petition.

7. 1st Respondent/plaintiff filed counter and opposed the

application. It was contended interalia that as per Ex.A-1

G.O.Rt.No.1822 dated 22.12.2008, Ex.A-2 registered

exchange deed was executed in between defendants 3 and 4;

that in order to drag the proceedings this application is filed

and thus, prayed the Court to dismiss the application.

8. By order dated 13.07.2022, trial Court dismissed the

application. Aggrieved by the same, the above revision is filed.

9. Heard Sri C.Subodh, learned counsel for petitioner and

Sri T.D.Pani Kumar, learned counsel for 1st respondent.

10. Learned counsel for petitioner would submit that

summoning of rejection proposal by exchange of open space

is necessary in view of pleadings of respective parties. He

would also submit that plaintiff and other defendants are

denying the very existence of document and since the suit is

filed for declaration basing on registered sale deed,

summoning of rejection of proposal in L.Dis.No.7244 of 2003

dated 05.03.2004 is necessary for adjudication of dispute.

11. Learned counsel for 1st respondent supported the order

of the trial Court.

12. Now, the point for consideration is:

1) Whether the petitioners are entitled for summoning of rejection of proposal in L.Dis.No.7244 of 2003 dated 05.03.2004?

2) Whether the Court below failed to exercise jurisdiction vested with it?

13. As stated supra, suit is filed for declaration of title and

also to declare registered settlement deeds executed by

defendants 5 and 6 in favour of defendants 2 and 1

respectively as void and for grant of consequential permanent

injunction. Plaintiff while asserting title to schedule property

by virtue of registered sale deed dated 17.09.2010 also

prayed the Court to declare registered settlement deeds

executed by defendants 5 and 6 in favour of defendants 2 and

1 respectively as void documents. Defendants 1, 2 and 6 filed

the present application to summon the rejection of proposal

in L.Dis.No.7244 of 2003 dated 05.03.2004 from the office of

DTCP.

14. On behalf of 3rd respondent/Municipality, it was

contended that the documents are already on record. A

perusal of the order passed by trial Court would indicate that

documents were already on record, however, the order is not

clear as to whether the said documents are marked or not.

But the evidence on behalf of plaintiff is completed and the

suit is coming up for evidence of 2nd defendant.

15. The case of 2nd defendant is that DTCP rejected the

proposal of Nellore Municipal Corporation to exchange when

proposal was sent to the authority to exchange the plot,

however, notwithstanding the said rejection, there was

exchange deed and pursuant to the exchange deed, sale deed

was executed in favour of plaintiff. In view of complexity of

the matter, summoning of rejection proposal in

L.Dis.No.7244 of 2003 dated 05.03.2004 for exchanging open

space of Ac.0.25 cents in S.Nos.1220, 1221, 1222 of Nellore

Bit-II shown in Ex.B-1 DTCP plan bearing No.84 of 1992 with

the site in S.No.2004 of Nellore Bit-II from the office of DTCP,

in the considered opinion of this Court is essential. Once the

document is produced before the Court, it enables the Court

to deal with dispute judiciously. The observation of the trial

Court that if at all the document is not filed, the petitioner

can seek the same from 3rd defendant, may not arise for the

reason that according to petitioner, plaintiff, 3rd defendant

and other persons colluded and created these documents. In

such event, it is in the interests of justice, documents should

be summoned.

16. In Jai Singh and Ors. Vs. Municipal corporation of

Delhi and Ors.1, while dealing with scope and ambit of

Article 227 of the Constitution of India, the Hon'ble Apex

Court held thus:

25. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in the case of The Estralla Rubber v. Dass Estate (P) Ltd. : (2001) 8 SCC 97 wherein it was observed as follows:

The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the

(2010) 9 SCC 385

duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.

17. In view of expressions of the Hon'ble Apex Court supra,

since the trial Court failed to exercise jurisdiction vested with

it and dismissed the I.A., the same warrants interference of

this Court under Article 227 of the Constitution of India.

18. Accordingly, the Civil Revision Petition is allowed.

Order dated 13.07.2022 in I.A.No.403 of 2022 in O.S.No.67 of

2013 on the file of I Additional District Judge, Nellore is set

aside. I.A.No.403 of 2022 is allowed. The trial Court shall

issue process for summoning the rejection of proposal vide

L.Dis.No.7244 of 2003 dated 05.03.2004 for exchanging the

open space of Ac.0.25 cents in S.Nos.1220, 1221 and 1222 of

Nellore Bit-II shown in Ex.B-1 DTCP plan bearing No.84 of