P.Kashinath Yadav vs Mangilal Choudary
2021 Latest Caselaw 3432 Tel

Citation : 2021 Latest Caselaw 3432 Tel
Judgement Date : 12 November, 2021

Telangana High Court

P.Kashinath Yadav vs Mangilal Choudary on 12 November, 2021

Bench: A.Rajasheker Reddy

     HON'BLE SRI JUSTICE A.RAJASHEKER REDDY

          CIVIL REVISION PETITION No.1489 of 2021


ORDER:

This Civil Revision Petition is filed against order dated

23.11.2019 in I.A.No.619 of 2021 in O.S.No.204 of 2018,

wherein and whereby, the trial Court dismissed the

application filed by the petitioner/defendant under Order 14

Rule 5 read with Section 151 CPC for framing additional

issue .

Learned counsel for the petitioner submits that when the

petitioner/defendant raised the dispute about the title of the

respondent/plaintiff, it is the bounden duty of the Court to

frame issue and the Court below should have framed an issue

regarding title, but the Court below has not framed the issue.

When the petitioner/defendant filed an application for framing

an additional issue, the Court below without considering the

issue in proper perspective dismissed the same. In support of

his contention, he relied on the judgments reported in Jharkand

State Housing Board v. Didar Singh [2018 ALT (Rev.) 218 (SC),

Anathula Sudhakar v. P.Buchi Reddy (Dead) by L.Rs [AIR 2008

Supreme Court 2033] and Venkata subbamma v. Praneshchari

[2004) 3 ALT 513]. He also submits that the petitioner and the

respondent are claiming the title through common vendor and

both are claiming title basing on registered sale deeds, as such,

the issue regarding title needs to be framed in the present suit.

On the other hand, Sri Vedula Srinivas, learned Senior

Counsel appearing for Vedula Chitralekha, learned counsel for

the respondent/plaintiff submits that the Court below found

that the claim made by the petitioner/defendant is in respect of

different property and his claim is different with that of the

property of the respondent/plaintiff, as such, there is no

dispute regarding title of the plaint schedule property. He also

submits that after giving such finding, the Court below has

dismissed the application. He also submits that the judgments

relied on by the learned counsel for the petitioner has no

application since in the present case, the respondent/plaintiff

is claiming rights in respect of the house property identified by

house numbers with boundaries and it is not an open plot and

the same area is distinguishable on facts.

In this case, it is to be seen that the issues are framed by

the court below on 25.07.2019 and present application is filed

in the month of March, 2021 and a memo incorporating draft

issues is filed on 17.08.2021 after filing of the said application.

The learned counsel appearing for petitioner/defendant could

have filed draft issues before framing issues by the court below,

but that has not been done.

Para 15 of the impugned order reads as follows:

"15. As can be seen from the rival pleadings, the plaintiffs are claiming to be the owners and possessors of a house no plot No.5, in sy.no.146 part of Nagaram village. That the petitioner/defendant is asserting rights in plot No.92 and

127 out of sy.nos.146, 147 and 148 of Nagaram village. Therefore, the title set up by defendant is not for the property claimed as claimed by the plaintiffs in the suit. The claim of the plaintiffs is in respect of a house in plot no.5 in Sy.No.146 part alone, whereas the defendant is asserting rights over plot numbers 92 and 126 that too out of Sy.No.146, 147 and 148. Therefore, by no stretch of imagination can be said that the plaintiffs as well as defendant are fighting for one and the same property. While the property claimed by the plaintiff is a house and what is being claimed by the defendants is open plot, thus it cannot be said that there is title dispute between the parties in respect of the suit schedule property, which is house bearing no.12-48/8/1, on plot no.5. In simple, the plaintiffs are seeking for grant of permanent injunction in respect of the said schedule property on which no hand is laid by the defendants, therefore, there is no scope for the defendant to deny the title of the plaintiff over the suit schedule property, therefore, there is no necessity for plaintiffs to seek declaration of title. Hence, there is no need to frame an issue concerning title of the plaintiffs. It is held in catena of decisions that mere, casual or formal denial of title of the plaintiffs by the defendants in a suit for injunction, does not necessarily drive plaintiffs to seek for the declaration of the title. The same was observed so in para 17(d) of the decision of the Hon'ble Supreme Court of India in Anathula Sudhakar v. P.Buchi Reddy (died) for LRS rendered in civil appeal No.6191/200 decided on 25th March, 2008."

The finding in para 15 of the impugned order is not

seriously disputed since the Court below found that the

property claimed by the petitioner/defendant is quite different

with that of the property claimed by the respondent/plaintiff.

More so, this application is filed almost after two years of

framing issues by the Court below and even at the time of

filing application, draft issues are not filed and only in August

2021, along with memo, draft issues have been filed. A

reading of the draft issue goes to show that they are general in

nature and while dealing with the suit for injunction, all these

aspects also needs to be considered by the Court below before

granting injunction and no separate issues need be framed.