Al Haj Mohammed Rafiuddin vs Md. Hasan Miya Died Per Lrs And 15 ...
2023 Latest Caselaw 195 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

 CIVIL REVISIONPETITION Nos.2486, 2493 & 2498 of 2022

COMMON ORDER:


      These Civil Revision Petitions are filed against the

Common Order of the trial Court in I.A.Nos.51, 52 & 53 of 2022

in O.S.No.19 of 2011 dated 27.09.2022.



2.    Defendants in the suit filed I.A.Nos.51, 52 & 53 of 2022

before the trial Court, as they are interconnected with each

other all of them are disposed of by a Common Order dated

27.09.2022. I.A.No.51 of 2018 was filed to recall and examine

D.W.2 for further evidence and for marking certain documents.

I.A.52 of 2018 was filed to re-open the suit in O.S.No.19 of 2011

for adducing further evidence. I.A.No.53 of 2018 was filed

seeking leave to produce certified copy of a registered sale deed

No.2030 of 1985 dated 22.05.1985 and certified copy of the sale

deed vide Doc.No.981 of 1989 dated 13.08.1989. The trial Court

considering   the   arguments   of   both   sides   allowed   the

applications. Aggrieved by the said order, these revision

petitions are preferred.
 3.        The learned Counsel for the petitioners mainly contended

that the trial Court allowed said applications mechanically

without specifying any reasons. The trial Court ought to have

rejected I.A.No.52 & 51 of 2022 as they were not filed

inconformity with Order VI rule 15 of C.P.C r/w rule 2(j), rule

2(m), rule 9(1), rule 9(3), rule 26(2), rule 40, rule 46 and rule 53

of Civil Rules of Practice and Circular Orders, 1980 and

I.A.No.53 of 2022 was not filed under Order 8 rule (1-A) of C.P.C

r/w rule 54 of Civil Rules of Practice and Circular Orders, 1980.

He further stated that applications were filed after 10 years from

the date of filing the suit when the suit was posted for

arguments. He also relied upon a decision of the Hon'ble

Supreme Court in the case of K.K.              Velusamy     Vs.   N.

Palanisamy1 and in the case of Bagai Constructions Vs.

Gupta Building Material Store2 and also relied upon the

reported Judgment of this Court in 2016 (3) ALD 658 and

2014 (1) ALD 240 and submitted that allowing all the above

applications is illegal as per the above citations. He further

stated that Order 18 rule 17(A) C.P.C was deleted from

01.07.2002 to avoid misuse of the said provision. I.A.No.51 &

52 of 2022 was filed vide CFR No.531 & 532 respectively on

1
    2011 (11) SCC 275
2
    2013 (14) SCC 1




                                  2
 11.06.2018 and the same were returned by office with certain

objections to submit the same within 7 days, but they were

resubmitted on 05.02.2022 i.e, after 2 years 10 months without

filing condonation petition or without leave of the Court and it is

not permissible and in the above applications, the cause title is

not shown correctly, there is no proper verification of the

pleadings.   The   translation   copies   filed   along   with   said

applications were in violation of C.P.C and Civil Rules of

Practice and Circular Order, 1980 as such they are not

permissible under law, but the trial Court erred in allowing the

same. Therefore, requested the Court to set aside the Common

Order dated 27.09.2022.



4.     Heard arguments of both sides and perused the entire

record.



5.    O.S.No.19 of 2011 was filed for permanent injunction

restraining defendants from interfering with the peaceful

possession of land bearing Sy.No.115/C to an extent of

Ac.0 - 03 gts, situated at Doutiyal Tarfa, Shivar Bodhan,

Bodhan. I.A.No.52 of 2018 was filed on 11.06.2018 and

petitioners in their affidavit stated that they came to know




                                 3
 about the execution of sale deed vide Doc.No.2030 of 1985

dated 22.05.1985 in favour of one Pukala Narsaiah and

Mammara Chinamma in the year 2018. Later the said Pukala

Narsaiah sold the land in Sy.No.115/C to an extent of Ac.0 - 03

gts in favour of Anthul Fathima. The plaintiff No.1 stated that

she purchased the suit land from Shivaiah in the year 1996 and

she sold the said land to defendant No.4. The vendor of the

plaintiff has already sold the land in Sy.No.115/C measuring an

extent of Ac.0 - 3 gts to Pukala       Narsaiah   and   Mammara

Chinamma, but plaintiff No.1 alleged that she purchased the

land from Shivaiah and the said allegation is false and with an

intention to play fraud, revenue records have been created by

the defendant No.4, who was working in the record room of

Tahsil Office, later he was removed from service. To prove the

fraud played by the respondents/plaintiffs, they are filing two

registered sale deeds and stated that plaintiffs has no right of

ownership and possession over the suit land. Therefore,

requested the Court to receive the documents to re-open and

recall of the evidence.

6. In the Counter filed by the respondents/plaintiffs No.1 to

4, they stated that suit was filed for permanent injunction. They

purchased the suit schedule property from M.Shivaiah in the

year 1988 and it was regularized through ROR proceedings vide

Doc.No.A5/9764/96 under Ex.A4. The concerned revenue

authorities have incorporated the name of plaintiff No.1 in the

Pahanies and issued title deed under Ex.A1. The Pahanies

under Ex.A2, Ex.A10 to A13 also shows the possession of

plaintiff No.1 over the suit schedule property. The plaintiff No.1

executed Agreement of Sale cum General Power of Attorney in

favour of Plaintiff Nos.2 & 3 vide Doc.No.4464 of 2010 dated

04.04.2010 under Ex.A3 and delivered the possession. Since

then plaintiff Nos.2 & 3 are in peaceful possession and

enjoyment of the said property. The Pahanies for the year 2010-

11 under Ex.A2 also proves their possession.

7. The defendants in their written statement contended that

defendant No.1 is the owner of the suit schedule land

admeasuring Ac.0 - 13 gts in Sy.No.115/AAEE. Out of Ac.0 - 13

gts, he gifted 553.38 Sq.yards to his daughter through

registered gift deed dated 31.08.2009 under Ex.B7 and she in

turn executed gift deed to an extent of 150.84 Sq.yards vide

Doc.No.5400 of 2009 in favour of her husband under Ex.B8. In

the said suit, issues were framed and P.W.1 to P.W.4 were

examined on behalf of the plaintiffs and got marked Exs.A1 to

Ex.A18. D.W.1 and D.W.2 were examined on behalf of the

defendants and marked Exs.B1 to B40. When the matter was

posted for arguments on 28.09.2015, I.A.No.347 of 2015 was

filed to receive two documents i.e, the application dated

18.08.2015 made by defendant No.2 to the Tahsildar, Bodhan

and the memo No. G/Records/2015, dated 17.08.2015 issued

by the Tahsildar, Bodhan. I.A.No.348 of 2015 was filed to recall

and for further chief examination of P.W.2 and I.A.No.349 of

2015 was filed to re-open the case and for further chief

examination of D.W.1 to mark above documents and the trial

Court allowed the said applications. Aggrieved by the said

orders of the trial Court, plaintiffs filed revision petitions

bearing No.5104, 5132 and 5126 of 2017 before this Court and

all the said revision petitions are dismissed by Order dated

26.12.2021, confirming the Order of the trial Court. The said

petitions are returned, as Stay is pending on 11.06.2018 and

the present petition is filed on 22.02.2022 and it is not

maintainable and is liable to be dismissed.

8. Petitioners/defendants further stated that as per evidence

of D.W1 to D.W3, they are nothing to do with the suit land in

Sy.No.115/C. Defendants are having knowledge of all

transactions involving in the suit including ROR Act. They also

stated that power to exercise of discretion under the provisions

of Order 18 rule 17 or Order 8(A) rule 2(a) or under Section 151

of C.P.C is not intended to be used routinely, it will defeat the

very purpose of various amendments to the Code of expedite

trials. The defendants 1 and 2 have taken a consistent stand in

their written statement and evidence that plaintiffs are not

owners and they are not in possession of the suit lands. D.W.1

and D.W.3 admitted that they are claiming land in

Sy.No.115/AAEE and 115/E and not in 115/C. Plaintiffs

wrongly mentioned boundaries under Ex.A3 and got executed

rectification deed under Ex.A18 and they filed I.A.No.210 of

2015 to receive the registered supplementary deed of

rectification dated 20.12.2014 and also to re-open evidence of

P.W.2. Though, defendants filed counter opposing the same, the

trial Court allowed I.A.No.210 of 2015 on 13.08.2015 and P.W.2

cross-examined at length. They further stated that after

completion of evidence of both sides, matter was posted for

arguments on 28.09.2015 and they filed all the said

applications at belated stage. Therefore, requested the Court to

dismiss the same. The trial Court observed that the documents

produced by the petitioners/defendants are crucial and allowed

the applications. Aggrieved by the same, plaintiff No.4 in the

suit preferred these revision petitions.

9. The Counsel for the revision petitioner mainly contended

that I.A.Nos.51, 52 & 53 of 2018 were filed on 11.06.2018 and

the same were returned by office with certain objection to re-

submit the same within 7 days, but they were re-submitted on

05.02.2022, i.e, after 2 years 10 months without any petition to

condone the delay. Admittedly, plaintiffs filed suit for permanent

injunction. He contended that plaintiffs are owners and

possessors of agricultural land in Sy.No.115/C to an extent of

Ac.0 - 03 gts. He also stated that plaintiff No.1 purchased the

said land from M.Shivaiah in the year 1988, therefore ROR

proceedings, revenue authorities incorporated the pattedar's

name in the pahani's and issued title deed and pattadar

pahani's which clearly shows plaintiffs possession over the suit

schedule property. He filed original title deed and Pahanies for

the year 2005-06 to 2010-11 and later plaintiff No.1 entered

into an Agreement of Sale cum General Power of Attorney on

30.05.2010 in favour of plaintiff Nos.2 & 3. During the

pendency of suit, plaintiff Nos.2 & 3 sold the suit schedule

property to plaintiff No.4 through a registered sale deed vide

Doc.No.3463 of 2013 dated 12.04.2013. Plaint was filed on

09.12.2013, but the said applications to receive the documents

were filed on 11.06.2018 and the same were returned with

objection to re-submit within 7 days, but those applications

were re-submitted only on 05.02.2022 with an abnormal delay

without filing delay condonation petition, as such the said

applications itself are not maintainable. The Counsel for the

revision petitioner also pointed out that the original documents

along with translations stated that in the sale deed dated

13.04.1978 vide Doc.No.981 of 1989, the survey number was

shown as 115/e and in Doc.No.2030 of 1985 also the survey

number was shown as 115/e, but in the translations it was

shown as 115/C to mislead the Court. The Counsel for the

respondents in his arguments filed mapping table for the Telugu

letters in which it was shown as "C - ఇ". As such he correctly

translated the documents and the land in the sale deed sold by

him is pertaining to Sy.No.115/C, but in Telugu it was shown

as 'ఇ'. Originally, suit was filed for Ac.0 - 03 gts of land in

Sy.No.115/C, from the contents of the plaint, respondents

herein has not filed the above documents till 22.02.2022 and

they have not filed any reasons for delay in filing the said

applications. Moreover, suit is for injunction simplicitor and not

for declaration of title. Plaintiff No.4 clearly stated that he is the

lawful owner and possessor of the suit schedule property and

also filed certain document to substantiate his version.

Therefore, the arguments of the respondents that the vendor of

the plaintiff No.1 already sold the land to Pukala Narsaiah and

Mummara Chinamma, as such plaintiff No.1 purchased the

land from Shivaiah is false and they are filing two registered

sale deeds to prove the fraud played by the plaintiffs is not

tenable. Even in the first part of the plaint, plaintiff stated that

he purchased land from Shivaiah and the document intended to

be filed by him are pertaining to the year 1985, as such he

should have file document along with written statement or he

has to submit reasons for not filing the same during the course

of proceedings. Admittedly after the evidence of both sides,

matter was posted for arguments. At that stage, he filed these

applications. Considering the nature of the suit and the nature

of documents filed by the revision petitioner, this Court finds

that the trial Court allowed the applications without

appreciating the facts properly. Therefore, the Common Order of

the trial Court is liable to be set aside.

In the result, these Civil Revision Petitions are allowed by

setting aside the Common Order of the trial Court in I.A.Nos.51,

52 & 53 of 2022 in O.S.No.19 of 2011 dated 27.09.2022. There

shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________ JUSTICE P.SREE SUDHA

DATED: 11.01.2023

tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

CIVIL REVISION PETITION Nos. 2486, 2493 & 2498 of 2022

DATED:11.01.2023

TRI