Andhra Pradesh High Court - Amravati
Mothukuri Nageswara Rao Mothukuri ... vs Nimmakuri Subba Rao Alaparthy ... on 11 September, 2024
APHC010677282013
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3331]
(Special Original Jurisdiction)
WEDNESDAY, THE ELEVENTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION NO: 1446/2013
Between:
Mothukuri Nageswara Rao & Mothukuri Subba ...PETITIONER(S)
Rao and Others
AND
Nimmakuri Subba Rao Alaparthy Krishnaiah ...RESPONDENT(S)
and Others
Counsel for the Petitioner(S):
1. NAGA PRAVEEN VANKAYALAPATI
Counsel for the Respondent(S):
1. SRINIVAS EMANI
The Court made the following:
ORDER
Heard Sri Naga Praveen Vankayalapati, learned counsel for
petitioners, and Sri Emani Srinivas, learned counsel for 1st
respondent.
2. This Civil Revision Petition is filed against the order dated
11.02.2013 in E.P.No.8 of 2011 in O.S.No.40 of 1989 on the file of
Principal Junior Civil Judges' Court, Ponnur.
3. The 1st respondent-D.Hr filed suit O.S.No.40 of 1989 on the
file of Munsif Magistrate, Ponnur for recovery of possession of the
suit schedule property. In the plaint, it was contended, interalia, that
he purchased an extent of Ac.0.04½ cents of the vacant site under a
registered sale deed dated 27.05.1974. The 1 st defendant is the
brother of the plaintiff's vendor. The 1st defendant colluded with
defendants 2 and 3 and high-handedly encroached upon the suit
site and put up two residential houses overnight to an extent of 3/4
cents of the site. A legal notice was issued and thereafter filed the
suit for recovery of possession.
4. The 1st defendant filed a written statement. Defendants 2 and
3 filed separate written statements.
5. The trial Court dismissed the suit by judgment and decree
dated 27.11.1996. Aggrieved by the same, the plaintiff filed appeal
A.S.No.1 of 1997 on the file of Senior Civil Judge's Court, Bapatla.
The appellate Court being the final fact-finding Court, on
consideration of oral and documentary evidence, allowed the appeal
and decreed the suit by judgment and decree dated 08.10.2001.
Thereafter, the Decree Holder filed E.P.No.8 of 2011 under Order
XXI Rule 35 of CPC. The said EP was ordered on 01.12.2013.
Against the said order, the present revision was filed.
6. Sri Naga Praveen Vankayalapati, learned counsel for
petitioners would submit that the suit instituted by the plaintiff is
under Section 6 of the Specific Relief Act, 1963. The suit was
dismissed by the trial Court on 27.11.1996. He would also submit
that as per Section 6 (3) of the Specific Relief Act, no appeal would
lie, however, the plaintiff filed the appeal and the appellate Court
allowed the appeal and decreed the suit, and hence, the decree
passed in the suit is not executable.
7. Per contra, Sri Emani Srinivas, learned counsel for 1st
respondent would submit that the suit filed for recovery of
possession of the property is based on title and the Court fee was
paid under Section 29 of the Andhra Pradesh Court Fees and Suits
Valuation Act, 1956. He would also submit that the Appellate Court
by placing reliance upon the Commissioner's report decreed the suit
and hence, the decreed in the suit is executable. He also would
submit that the Courts discussed the title aspect.
8. Now, the point for consideration is:
Whether the order dated 11.02.2013 in E.P.No.8 of
2011 in O.S.No.40 of 1989 on the file of Principal
Junior Civil Judges' Court, Ponnur, suffers from any
irregularities warranting interference by this Court?
9. The 1st respondent being the plaintiff filed suit O.S.No.40 of
1989 for recovery of possession of plaint schedule property. As
seen from the decree filed along with material papers, the plaintiff
paid the Court fee under Section 29 of the Andhra Pradesh Court
Fees and Suits Valuation Act, 1956, as the suit is filed for recovery
of possession of the property. Averments in the Plaint, as seen
from the judgment, the plaintiff purchased the property under a
registered sale deed dated 27.05.1974. Thus, the plaintiff pleaded
title to the property and filed the suit for recovery of possession. In
fact, the appellate Court recorded a finding about the title of the
plaintiff. The suit was not filed on possession of the plaintiff and
dispossession by the defendants. In a suit filed under Sec 6 of the
Specific Relief Act, normally the Court will not go into the aspect of
title. It only deals with whether the plaintiff proved dispossession at
the hands of defendants without following due procedure and the
suit is filed within six months from the date of dispossession.
10. In the case at hand, a finding was recorded by the Appellate
Court qua the title of the appellant/plaintiff. In fact, the appellate
Court by placing reliance upon the Advocate-Commissioner's report,
and other material allowed the appeal and finding was also recorded
about the title.
11. Thus, the contention of learned counsel for the revision
petitioner that the suit is to be treated as one filed under Section 6 of
the Specific Relief Act, falls to ground.
12. The E.P. was filed to execute the decree in O.S.No.40 of
1989. The Executing Court, after considering the material on
record, allowed the E.P. and appointed the Field Assistant to
implement the decree. No irregularity or illegality was pointed out,
qua, the order passed by the Executing Court. Given the discussion
supra, this Court is of the considered opinion, that there are no
merits in the revision and the revision is liable to be dismissed.
13. Accordingly, the Civil Revision Petition is dismissed. No costs.
As a sequel, pending miscellaneous petitions, if any, shall
stand closed.
___________________________
JUSTICE SUBBA REDDY SATTI
PVD
