Telangana High Court
Sri. Ashok Kumar Jain vs Sri Karan Raj And 6 Others on 21 January, 2021
Bench: T.Amarnath Goud
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
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
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
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
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
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?
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
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
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
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
