Andhra Pradesh High Court - Amravati
Viratapu Sesharatnam vs Kosuri Srinivasa Rao on 16 October, 2023
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CMR, J.
CRP No.5192 of 2018
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Civil Revision Petition No.5192 of 2018
ORDER:
Assailing the order, dated 20.02.2018, passed in
E.A.No.347 of 2012 in E.P.No.23 of 2012 in O.S.No.120 of 2000
on the file of the Principal Senior Civil Judge, Kovvur, whereby
the petition filed under Section 47 CPC by the revision
petitioners herein, was dismissed, the instant Civil Revision
Petition is preferred.
2) Heard learned counsel for the petitioners and learned
counsel for the respondents.
3) For the sake of convenience, the parties will be referred as
they are arrayed in the plaint.
4) The plaintiffs have filed the Suit in O.S.No.120 of 2000 on
the file of the Principal Senior Civil Judge, Kovvur, for partition
of the plaint schedule property against the defendants therein,
who are all members of the joint family. The revision
petitioners herein, who are two in number, are third parties to
the family. They are also added as defendants in the Suit filed
for partition on the ground that an agreement to sell was
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CRP No.5192 of 2018
executed in their favour by one of the family members. They
have taken a plea that as agreement to sell was executed in
their favour that the said property cannot be partitioned.
5) After trial, in the final adjudication, the trial Court
negatived their contention and held that as they did not file any
Suit for specific performance of contract within the period of
limitation that they cannot claim any right in the property of
the said family and thereby decreed the Suit. The first appeal
preferred there against came to be dismissed. The Second
Appeal preferred against the said judgment and decree also was
dismissed confirming the judgment and decree of the trial
Court.
6) Thereafter, final decree was passed and the plaintiffs have
filed E.P.No.23 of 2012. In the said E.P., the revision
petitioners, who are the alleged agreement holders, have filed a
petition under Section 47 CPC to declare that the preliminary
decree and the final decree passed in the Suit and the order
passed in the E.P. are void under law and that they are without
jurisdiction. The said petition was dismissed by the impugned
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CRP No.5192 of 2018
order. Aggrieved thereby, the instant Civil Revision Petition is
preferred.
7) The only ground on which learned counsel for the revision
petitioners would assail the impugned order is that when the
petitioners, who are asserting their right under Ex.B.1
agreement to sell, have been in possession and enjoyment of
the property covered by the said agreement to sell that the trial
Court cannot pass any decree for recovery of possession and
that the plaintiffs have to file a separate Suit for recovery of
possession after ejecting them from the plaint schedule
property and as such, the decree is not valid and the same
cannot be executed in the execution proceedings.
8) The said ground on which the petition under Section 47
CPC was filed is absolutely misconceived and the same is
obviously filed to further delay the process of law and to defeat
the ends of justice and to prevent the plaintiffs from enjoying
the fruits of the decree.
9) The revision petitioners have taken a clear plea in the trial
Court that they are holding an agreement to sell in respect of
part of the plaint schedule property and as such, the Suit for
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CRP No.5192 of 2018
partition cannot be decreed and possession of the property
cannot be ordered to be delivered to the plaintiffs. After
considering the evidence on record and the law on the issue,
the trial Court clearly negatived the said contention and held
that they cannot claim any right in the joint family property by
virtue of any such agreement to sell and that too without filing
any Suit for specific performance within the period of limitation.
The said finding was confirmed by the first appellate Court.
The first appellate Court clearly held at para. 36 of the
judgment that the Suit is maintainable without rescinding the
contract and also held that the plaintiff is entitled to partition of
the plaint schedule property into two equal shares and for
allotment of one such share and further held that the plaintiff
is entitled to recover the possession of his half share in the
property covered by Ex.B.1 i.e. agreement to sell. The said
finding is also confirmed in the Second Appeal. In the Second
Appeal also, this Court clearly held that there is no recital in
the agreement to sell that possession of the property was given
under the said document and further held that merely because
the 3rd defendant delivered the possession, somehow to the
appellants/ revision petitioners, that they cannot take shelter
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CRP No.5192 of 2018
under Section 53-A of the Transfer of Property Act and they
admittedly did not file any Suit for specific performance within
the prescribed period of limitation. The High Court also clerly
held in the Second Appeal that all the said contentions, which
are raised by the revision petitioners herein, have been
considered and rejected by the Courts below and in view of the
said concurrent findings of the Courts below, that no
substantial question of law has arisen in the Second Appeal
and thereby dismissed the Second Appeal.
10) Thus, right from the trial Court till the High Court in the
Second Appeal, the contention of the revision petitioners has
been clearly negatived at all stages. When the questions now
raised by the revision petitioners are clearly resolved and
adjudicated by the trial Court, first appellate Court and also the
second appellate Court, it is not at all open to the revision
petitioners to now raise the same questions and issues by way
of filing a petition under Section 47 CPC. So, it is a clear case
where, by way of filing frivolous petition under Section 47 CPC,
the revision petitioners have been preventing the plaintiffs from
enjoying the fruits of the decree inspite of the fact that the trial
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Court, first appellate Court and the second appellate Court held
in favour of the plaintiff.
11) Therefore, in the said facts and circumstances of the case,
the impugned order of the executing Court in dismissing the
petition filed under Section 47 CPC is perfectly sustainable
under law and it absolutely calls for no interference in this
revision.
12) Resultantly, the Civil Revision Petition is dismissed. No
costs.
Consequently, miscellaneous applications, pending if any,
shall stand closed.
________________________________________________
JUSTICE CHEEKATI MANAVENDRANATH ROY
Date:16.10.2023.
cs
