Telangana High Court
Meka Venkata Laxmi vs Koruprolu Sree Rama Rao on 24 April, 2024
* THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
+ A.S.No.59 OF 2024
% 24.04.2024
# Between:
Meka Venkata Laxmi and two others
Appellants
Vs.
Koruprolu Sree Rama Rao and another
Respondents
! Counsel for Appellants : Sri Madiraju Prabhakar Rao
^ Counsel for Respondents : Sri Kondaparthy Kiran Kumar
<GIST:
> HEAD NOTE:
? Cases referred :
1. (1958) 60 BOM LR 1208
2. C.R.P.(NPD) No.90 of 2012 decided on 21.01.2015
3. 2022 Live Law SC (19)
2
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AS_59_2024
THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
A.S.No.59 OF 2024
JUDGMENT:
Aggrieved by the order and decree dated 30.10.2023 in
E.A.No.36 of 2010 in E.P.No.12 of 2010 (hereinafter will be
referred as 'impugned order) passed by the learned I Additional
District Judge at Khammam (hereinafter will be referred as
'Executing Court'), the claim petitioners have preferred the
present appeal to set aside the impugned order.
2. For the sake of convenience, the parties hereinafter are
referred to as they are arrayed before the Executing Court.
3. The brief facts of the case, which necessitated the
appellants to file the present appeal, are as follows:
a) The claim petitioners filed claim application vide
E.A.No.36 of 2010 in E.P.No.12 of 2010 under Order XXI Rule
58 of the Code of Civil Procedure with a prayer to release the
petition schedule property from the suit as well as E.P.
proceedings by dismissing the claim of respondent
No.1/plaintiff and to declare the claim petitioner No.1 as owner
and possessor of the petition schedule property. The brief
averments of the claim petition are as under:
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i) The claim petitioners are none other than wife and
children of respondent No.2/defendant, against whom the
respondent No.1/plaintiff filed a suit for specific performance of
contract vide O.S.No.7 of 2007 and subsequently E.P. No.12 of
2010 was filed by respondent No.1/plaintiff.
ii) The defendant, who is the husband of claim petitioner
No.1, has not taken care of the claim petitioners as he was
addicted to alcohol and all bad vices and obtain loans. The
claim petitioners are living separately since 1993 from the
defendant as per the settlement of the elders. The mother in
law of the claim petitioner No.1 kept the agricultural land
admeasuring Ac. 13.00 guntas (i.e., an extent of Ac.8.00 guntas
in Sy.No.307/A/1 and an extent of Ac.5.00 guntas in Sy.No.376
both are in compact bit) situated at Patharlapadu Village,
Tirumalyapalem Mandal. Since then the claim petitioners are
enjoying the same without any interruption.
iii) Originally the father of defendant namely Seetharami
Reddy was the pattedar of the property and after his death, the
property was mutated in the name of mother of defendant by
name Anasuyamma. During her life time, in the year 1993 due
to acts of defendant, she mutated the petition schedule
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properties in the name of claim petitioner No.1 for the welfare of
the claim petitioner Nos.2 and 3. Since then the claim
petitioner No.1 was maintaining the property by paying land
revenue. The name of claim petitioner No.1 was entered into
relevant records and got issued title deed and pattadar pass
book on her name and also obtained loan from Andhra Pradesh
Grameena Vikas Bank, Patharlapadu Village by keeping
pattadar passbooks and title deeds.
iv) The claim Petitioner No.1 is having title over the property.
The defendants are not having any right over the property. The
claim Petitioner No.1 became absolute owner as per Section 14
of the Hindu Succession Act. Therefore, the plaintiff cannot
proceed against the EP schedule property. Hence, the claim
petitioners filed the present claim petition for the reliefs as
stated supra.
b) In reply to the claim petition, the plaintiff filed counter,
the brief averments of which are as under:
i) The claim petitioners, who are the wife and children of
defendant colluded among themselves and filed the present
petition with a view to grab the property to execute a decree
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which was passed in favour of the plaintiff. The claim
petitioners got foisted a false case by creating a mutation of
revenue records on her name.
ii) The claim petitioners and defendant executed an
agreement of sale twice in favour of Pendavulu Komaraiah, a
retired teacher, r/o. Jogulapadu (V), Tirumalayapaelm (M),
Khammam District and one Jatla Srinivasa Rao, R/o.
Lakshmipuram village of Konijerla Mandal. They habituated to
create false documents in order to extract money from the
persons. Therefore, they prayed to dismiss the claim petition
with exemplary costs.
c) The claim petition against defendant was dismissed by
the Executing Court on 12.06.2013 as batta was not paid
against defendant.
d) In order to prove their case, the claim petitioner No.1 was
examined as PW1 and got marked Exs.A1 to A10 and whereas
on behalf of plaintiff, he got examined as RW1 and got marked
Ex.R1.
e) On considering the rival contentions and also the oral
and documentary evidence, the Executing Court dismissed the
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claim petition.
4. Heard both sides and perused the record including the
grounds of appeal.
5. It is the contention of the claim petitioner No.1 that her
father gave EP schedule property to her towards
pasupukunkuma. But in the cross examination, the claim
petitioner No.1, who was examined as PW1 admitted that she
does not have any document to show that her father gave EP
schedule property to her towards pasupukunkuma. She
further admitted that she is not in possession of entire Ac.13.00
guntas of land as per the claim and the passbook filed by her.
The claim petitioner No.1 in her claim petition contended that
father of defendant was the pattedar of the property and after
his demise, the property was mutated in the name of
Anasuyamm his wife and mother of defendant and due to the
acts of defendant, Anasuyamma mutated schedule property in
the name of claim petitioner No.1. Thus, the claim petitioner is
blowing hot and cold at the same time because on one hand she
is claiming that the property was given to her by her father
towards pasupu kumkuma and on the other hand she is
contending that the property originally belongs to father of the
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defendant. Furthermore, she has deposed in her chief
examination affidavit that she purchased the property in the
year 1993 from its original pattedar. As stated supra, even as
per the contention of the claim petitioner, the property originally
belongs to father of the defendant. PW1 stated that she
purchased in the year 1993 from the original pattedar.
However, she pleaded that father of the defendant passed away
and on his demise the property was mutated in the name of
mother of the defendant and that due to attitude of the
defendant, mother of the defendant by name Anasuyamma has
mutated the property in the name of claim petitioner No.1.
Thus, there are several contradicting versions in the evidence
and pleadings of the claim petitioner. If at all the claim
petitioner No.1 has purchased the property from the original
pattedar in the year 1993, she ought to have produced the sale
deed or any other document, through which she alleged to have
purchased the said property from the original pattedar.
Moreover, by the date of purchase of the property by the claim
petitioner No.1, the original pattedar i.e., father of the defendant
was no more. It is pertinent to note that the claim petitioner
has filed E.A.No.41 of 2023 seeking amendment of the claim
petitioner claiming that the father of the defendant is the lease
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holder of the property and that she purchased the said property
from him.
6. It is further contended by the claim petitioners that the
schedule property was maintained by mother of the defendant
till 1993 and after some time the same was purchased by the
claim petitioner. If at all the claim petitioner No.1 has
purchased the property from the mother of the defendant, then
there shall be some sale deed validly supported by sufficient
consideration. But there is no such instance in the case on
hand. Moreover, the above mentioned amendment petition
filed by the claim petitioner No.1 was dismissed by the learned
Executing Court Judge. The claim petitioner No.1 without filing
any appeal or revision against the above said order, has re-
agitated the said contention in the Execution Application, which
is impressible. Thus, the version of claim petitioners is
inconsistent and irregular drawing any amount of adverse
inference that they have approached the Court with unclean
hands seeking equitable relief.
7. Though PW1 deposed that an extent of Ac.0.23 guntas or
½ acre of land was acquired by the government for SRSP Canal,
she admitted that she did not receive any compensation from
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the government for the above land. PW1 admitted that an
extent of 3 or 4 acres was in possession of one Ravula Chandra
Reddy but she has not received any sale consideration from
Ravula Chandra Reddy. If at all the claim petitioner No.1 was
owner and possessor of EP schedule property, certainly she
could have received compensation from the government for
acquiring part of EP schedule property and she could have
received sale consideration from Ravula Chandra Reddy for
alienating part of EP schedule property. It is pertinent to note
that the learned counsel for the claim petitioner gave suggestion
to plaintiff - RW1 that government awarded compensation on
the name of claim petitioner for acquiring land for Sri Ram
Sagar Project. It is quite surprising to note that the claim
petitioner No.1 is denying to have received any compensation
from government for acquiring part of schedule property for
project and whereas the learned counsel for the claim petitioner
is contending that the claim petitioner has received
compensation from the government from the project. Even for
the sake of arguments, if it is considered that the claim
petitioner No.1 was awarded compensation for acquiring part of
the schedule property, the claim petitioner cannot derive title
over such property merely because she was awarded
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compensation. In Dossibai Nanabhoy Jeejeebhoy v. P.M.
Bharucha 1 the High Court of Bombay observed as under:
"6. The Legislature has undoubtedly used different
expressions such as "persons interested", "persons known or
believed to be interested" and "persons possessing an interest".
But, in our judgment, the expressions "person interested", and
"person possessing an interest" appear to have the same meaning
which the expression "person interested" defined in Section
3(6) has. We are unable to agree with the contention of Mr. Gupte
that the Legislature has used the expression "person interested in
the land" as having a connotation distinct from the connotation of
"person interested". A "person interested in the land"
under Section 9 will, in our judgment, by the definition in Section
3(b), include a person who claims interest in compensation to be
paid on account of the acquisition of land, and the interest which
is contemplated by Section 9 and the other sections to which we
have referred is not restricted to legal or proprietary estate or
interest in the land but includes such interest as will sustain a
claim to apportionment with the owner of the land. If a person has
a right to remain in occupation or has a claim against the land, or
some obligation or restriction is imposed upon the ownership of
the land, the person in whom the right or claim is vested or who is
entitled to the benefit of the obligation or restriction will, in our
judgment, be entitled to compensation, even though the right,
claim or the benefit may not amount to an interest or estate in the
land. If a person has, without having any interest, a right to
remain in occupation or possession of land of the ownership of
another, compensation for extinction of that right by compulsory
acquisition will be payable to the person having the right of
occupation or possession. For instance, a person who has a
licence which is irrevocable will be a person interested, even
though the licence does not amount to an interest in the land. The
owner of a dominant tenement, having an easement over a
servient tenement, even though the easement does not amount to
an interest in the land, is by the definition declared expressly to
be a person interested in land. In our judgment, the right to
receive compensation for compulsory acquisition of land is not
restricted to those persons who have a legal or proprietary
interest or estate in the land and is available to all persons who
have a right or claim to land, even if such right or claim does not
amount to legal or proprietary estate or interest in the land."
8. In view of the principle laid down in the above said
(1958) 60 BOM LR 1208
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decision, it is clear that compensation is paid not only to owner
of the property but also to the person, who is in occupation of
the property. In the case on hand, since it is admitted by the
claim petitioner No.1 that for managing the agricultural
operations the schedule property was mutated in her name in
the revenue records, the compensation might have been
awarded to her but not in the capacity of owner of the property.
9. It is also pertinent to note that in the claim petition, the
claim petitioner No.1 has not deposited any process/batta
against the defendant, who is none other than her husband and
as a result, the claim petition against the defendant was
dismissed. The non deposit of process/batta by the claim
petitioner is appearing to be quite intentional in avoiding
unnecessary complications due to the presence of defendant in
the claim application.
10. The claim petitioner No.1 as PW1 deposed in her chief
examination that she is residing separately from her husband
i.e., the defendant. In the cross examination of RW1, a
suggestion was given to the plaintiff that the claim petitioner
and her husband deserted one another and they are living
separately and taking advantage of the same, the plaintiff and
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defendant colluded and foisted a false case against the schedule
property to grab it. But PW1 in her cross examination admitted
that her husband was present in the marriage of her daughter.
Even as per the contention of the claim petitioners, they are
living separately from defendant since 1993. In such
circumstances, if the claim petitioner No.1, her husband and
their children are living separately, the probability of husband
of the claim petitioner No.1 in attending the marriage of her
daughter is very negligible. Though the plaintiff obtained decree
in the year 2009, he could not reap the benefits of decree until
today and thus, any amount of collusion can be anticipated
between wife and husband i.e., claim petitioner No.1 and
defendant but not among the defendant and plaintiff.
11. It is the specific contention of the plaintiff that the claim
petitioners and defendant executed agreement of sale twice in
favour of Pendavula Komaraiah, a retired teacher, r/o.
Jogulapadu (V), Tirumalayapelam Mandal, Khammam District
and one Jatal Srinivasa Rao, R/o. Lakshmipuram village of
Konijerla mandal and that they habituated to create false
documents in order to extract money from the persons.
Furthermore, the defendant before the trial Court filed written
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statement contending that he is not the owner of the property.
It is not the case of the defendant that he has not executed the
agreement in favour of plaintiff. If at all the defendant is not
the owner or having rights over the schedule property, what
made him to execute agreement of sale in favour of the plaintiff
is not explained by the plaintiff. Furthermore, in the impugned
order, the Executing Court observed at paragraph No.25 that
after receiving a notice, the defendant never raised any
objection by saying that the property does not belongs to him or
that the property is mutated in the name of his wife. If really
the defendant has no rights in the schedule property, certainly
he could have raised objection when the draft sale deed is filed
by the plaintiff before the Executing Court.
11. As seen from the documents relied upon by the claim
petitioners, except Ex.A8, all the documents are subsequent to
the date of filing of the suit. The suit was filed in the year 2007
and the said suit was decreed in year 2009. Execution Petition
was filed in the year 2010. As per the impugned order, the
defendant did not raise any objection for execution of sale deed
by the Court and when the plaintiff has filed draft sale deed
before the Court, the claim petitioner has filed the claim
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application. As per Ex.R1 the name of the mother of the
defendant is being reflected as possessor of the property in
dispute. Even if we consider Ex.A8 as proper document, there
is no explanation as to how the name of mother of the
defendant was mutated in the revenue records as possessor of
the schedule property i.e., how the schedule property devolved
solely on the wife of the original pattedar when the son of the
original pattedar i.e., the defendant is very much alive.
12. Though the claimant No.1 is contesting the claim
application by contending that she became absolute owner and
possessor of the schedule property according to Section 14 of
Hindu Succession Act, the daughter in law has no right in the
property of her in-laws and she acquires rights to the in-laws'
property only through her husband but not independently. It is
the contention of the claim petitioner that due to the bad
attitude of the defendant, her mother in law mutated her name
in the revenue records. But a daughter-in-law does not have
any inherent rights in her mother-in-law's property and she is
not considered a legal heir under the Hindu Succession Act of
1956 and is not entitled to inherit the property automatically.
It is the contention of the claim petitioner No.1 that for
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managing the agricultural operations the schedule property was
mutated in her name in the revenue records. As rightly
observed by the learned I Additional District Judge at
Khammam, the claim petitioner No.1 cannot claim right under
Section 14 of the Indian Succession Act, as she is not the owner
of the property and that wife of original pattedar Anasuyamma
is not having any rights over the property and thus, she might
be manager of the property but cannot be kartha. Any woman,
who enters the Hindu Undivided Family by way of marriage is
only considered a member and not a coparcener. Hence, wives
and daughters-in-law cannot become kartas in a Hindu
Undivided Family.
13. It is the specific contention of the claim petitioner No.1
that the learned Judge ought to have seen that the schedule in
the alleged agreement of sale between the respondents and
schedule property in the property in the plaint and decree are
distinct and different, as such decree cannot be executed and
no steps are taken to amend the pleadings and decree, hence,
the impugned order is not sustainable. It is true that the survey
numbers of suit schedule property are distinct and different
when compared with the agreement of sale and pleadings. But
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it is pertinent to note that the defendant filed a petition under
order XXI Rule 11 of the Code of Civil Procedure vide E.P.No.12
of 2012 for execution of regular sale deed in favour of decree
holder. In the said petition, it was contended that survey
numbers and the boundaries are not tallying and prayed to
dismiss the petition. The decree holder filed E.A.No.16 of 2014
to permit him to file fresh affidavit and accordingly the said
petition was allowed. The learned judge has allowed E.P.No.12
of 2012 to the extent of directing the decree holder to file fresh
draft sale deed by correcting the mistake of survey numbers.
14. It is the contention of the claim petitioner that the learned
Judge ought to have seen that on earlier occassion E.P.No.12 of
2010 was filed and EP was allowed in part only directing the
decree holder to file fresh draft sale deed by correcting the
mistake of survey number by filing draft sale deed in respect of
survey number of the suit schedule property but the plaintiff
without taking steps for amendment of the necessary prayer,
directly filed the present EP and continued the same agaisnt the
defendant, in fact he has no right over the suit property. There
is no dispute that the defendant is the son of the original
pattadar. Even there is also no dispute that as per Ex.R1 i.e.,
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certified pahani issued by Tasildar, the mother of the defendant
is shown in possession of the property to the extent of
Sy.Nos.307/AA and 376. Even as per the version of the claim
petitioner, the property is situated in Sy.No.307/A/1 and 376
only. In such circumstances, the claim petitioners cannot
contend that the son of the original pattendar has no rights over
the subject property after the death of parents of the defendant.
15. In Chinnammal v. Rajeshwari and others 2 the High
Court of Madras observed as under;
"In this context, it is relevant refer to the following
judgments;
"(i) The Hon'ble Calcutta High Court, in a judgment
reported in AIR 1987 Calcutta 262 [Rajendra Prasad Agarwalla v.
Allahabad Bank] has observed as follows - "14. The above
decisions unequivocally lay down the proposition that
amendments to execution applications can be allowed in the
interest of justice, even if and also at a stage when Order 21 Rule
17 cannot be invoked, by invoking the provisions of Sections 151
and 153 of the Code. Whether an amendment which seeks to
change the nature and character of the execution application, can
be allowed. As stated earlier, in the instant case the execution
application initially filed was for realisation of the decretal dues
and by the amendment and decree-holder prayed for recovery of
possession of the suit lands. There is no manner of doubt that the
amendment completely changed the nature and character of the
execution application; and it was not one of those amendments
which was of a technical nature or by which the decree-holder
sought assistance of the Court for its execution in a different mode
other than in which it was earlier prayed for as in the decisions
cited above. (Para 18) 15. From the aforesaid decisions it is
apparent that the principle is now well settled. An amendment of
an execution application is not restricted to Order 21, Rule 17
only. Order 21, Rule 17, Sub-rule (1) contemplates the situation
when the applicatibn is first filed. The purpose of the same sub-
rule is to allow an opportunity to be given at the very onset of
making such application, so that formal defects of the nature
2 C.R.P.(NPD) No.90 of 2012 decided on 21.01.2015
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specified in Rules 11 to 14 of Order 21 may be rectified. We need
not go into any question of so-called the distinction between Sub-
rule (1) and Sub-rule (4) of Rule 17 as pointed out by the learned
single judge as it is not necessary to do so in the present case. In
our opinion this court has ample jurisdiction to allow an
amendment of such application though it is not covered by Rule
17. However, in allowing such amendment the Court has to
consider whether it has the effect of 5 substantially altering the
character of the execution proceedings."
(ii) In AIR 1987 Kerala 226 [Kassim Beevi v. Meeranchi
Myteen Beevi], it is held as follows - "When there was
misdescription in the agreement of sale about the boundaries of
the properly agreed to be sold and this discrepancy was noticed
by the court passing the decree for specific performance, the
execution of the decree could not be opposed on the technical plea
of misdescription of the property, when there was no dispute as to
identity of the property agreed to be sold. In the case of this
nature, the executing court is bound to carry out and implement
its decree in accordance with its tenor which in turn would imply
that the property should be correctly described with the proper
boundaries. It is not as if by doing so the court is traversing
beyond the decree or causing any prejudice to any of the parties
or conveying property not agreed to be conveyed."
(iii) In [AIR 1996 Calcutta 585], Kalipada Sinha v.
Mahalaxmi Bank, it is held as follows - "5. Mr. Sen on behalf of
the applicant has taken us through various provisions of the Civil
Procedure Code and has argued that execution proceedings are
separate proceedings from a suit and neither Order 21, Rule 16
nor Section 151 or 153 of the Civil Procedure Code applies. The
matter is set at rest by a Bench decision of this Court in, Rohini
Kumar Roy v. Krishna Prasad Roy, (1935) 39 Cal WN 1144. In
that case, the question arose about the power of the court to
amend an execution application. The very same objections were
made, viz., that no such power existed in the Executing Court
since the amendment could only be done under Order 21, Rule 16
or 17 and under no 6 other provisions of law. The objections were
overruled and it was held that the Court had inherent power
under Section 151 and Section 153 of the Code of Civil Procedure
to allow amendment of the petition for execution of the decree in
the interest of justice. In our opinion, it would be a strange
proposition that Section 23 of the Companies Act, 1956 should
enable a company in its new name to continue any legal
proceeding but that the executing court should be without any
power to allow it to do so, in the case of execution proceedings
which were pending. In our opinion, this point has no substance
and has been rightly rejected."
(iv) In a judgment reported in AIR 1997 Orissa 135
[Chloride India Ltd., v. District of Judge, Puri], it is held as follows
- "16. By amendment opposite party No. 3. inserted only that
description which was given in the H.R.C. petition and in respect
of which, House Rent Controller passed the order of eviction. It
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appears that original execution petition did not contain any
detailed description of the premises in question. The decreeholder-
opposite party No. 3 did not change or alter or substitute any
description, but merely supplied the description to rectify an
omission. If the decree holder had sought to introduce a
description different from the description given in the H.R.C.
petition the judgmentdebtor-petitioner might have a legitimate
grievance. In the facts and circumstances of the present case the
description introduced by amendment is in conformity with the
description given in H.R.C. petition. Thus, the Executing Court did
not commit any error in allowing the amendment and the District
Judge rightly rejected the petitioner's application under Section
115, C.P.C."
(v) In AIR 2004 SC 904(1) [ Ravinder Kaur v. Ashok 7
Kumar], it is observed as follows - "Therefore, raising a dispute in
regard to the description or identity of the suit schedule property
or a dispute in regard to the boundary of the suit schedule
property is only a bogey to delay the eviction by the abuse of the
process of court. Courts of law should be careful enough to see
through such diabolical plans of the judgment debtors to deny the
decree holders the fruits of the decree obtained by them. This type
of errors on the part of the judicial forums only encourage
frivolous and cantankerous litigations causing laws delay and
bringing bad name to the judicial system." The decisions would
show that the executing Courts in appropriate cases have to order
amendment exercising power under Section 151 in the interest of
justice and entertaining hyper technical objections of defeated
judgment debtors would encourage frivolous litigations.
Therefore, raising a dispute in regard to the description or
identity of the suit schedule property or a dispute in regard to the
boundary of the suit schedule property is only a bogey to delay
the eviction by the abuse of the process of court. Courts of law
should be careful enough to see through such diabolical plans of
the judgment debtors to deny the decree holders the fruits of the
decree obtained by them. This type of errors on the part of the
judicial forums only encourage frivolous and cantankerous
litigations causing laws delay and bringing bad name to the
judicial system. The decisions would show that the executing
Courts in appropriate cases have to order amendment exercising
power under Section 151 in the interest of justice and entertaining
hyper technical objections of defeated judgment debtors would
encourage frivolous litigations."
16. In view of the principle laid down in the above said
decision, it is clear that the Executing Court can permit
amendment if such amendment is necessary to remove formal
defects. It is not the case of the claim petitioners that under the
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guise of the amendment, the plaintiff has substituted new
properties. Moreover, the claim petitioner or her husband has
not preferred any appeal against the order of permitting the
amendment. Further, as stated supra, the claim petitioner
No.1, who is the daughter in law of the parents of the defendant
has no right in the property of her in-laws and she acquires
rights to the in-laws' property only through her husband but
not independently. Thus, the claim petitioner cannot deny the
right of the defendant over the suit schedule property as he is
none other than the son of the original pattadar of the property
in dispute and after the death of original pattedar his son
succeeds to the property by stepping into the shoes of his
father.
17. It is the contention of the claim petitioner No.1 that the
learned Judge ought to have seen that she filed W.P. No.15542
of 2021 against the ROR revenue order passed by the Special
Tribunal and a notice was ordered. It is further contended that
the Tahsildar has issued memo dated 11.10.2019 when the
appellant sought new passbook stating that civil suit is pending
and in the said memo it was mentioned that report of VRO, it is
learnt that respondent No.2 is not having any land in his name
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and his wife i.e., appellant No.1 is having land in the above
survey number and she is having pattadar passbook and
possession since 1992. It is not the case of the claim petitioner
No.1 that stay has been granted by the High Court over
execution proceedings in the said Writ Petition. The claim
petitioner No.1 alleged to have purchased the property in the
year 1993 from the original pattadar and in such
circumstances, the claim petitioner No.1 being in possession of
the property since 1992 as commented by the Tahsildar cannot
be believed. Moreover, the remarks made by the Tahsildar are
based on the alleged report of VRO and it cannot be a
substantial piece of evidence to consider the possession of the
claim petitioner No.1 over the property in dispute.
18. It is the specific contention of the claim petitioner that
claim petitioner No.1 is managing agricultural operations of the
suit property and paying land revenue and her name has been
entered in the revenue records, pahanies, pattadar passbook,
title deed etc., which establishes her possession and title over
the property, as such, by showing sufficient documentary
evidence, the claim petitioners have filed the claim petition
objecting the execution proceedings. It is settled law that the
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executing court cannot go beyond the decree because the whole
purpose of execution proceedings is to enforce the verdict of the
court. Then it becomes the bounden duty of the court to
interpret the decree in the process of giving a true effect to the
decree. The executing court, while executing the decree is
concerned only with the execution part of it and nothing else.
But the difficulty arises when there is ambiguity in the decree
with regard to the material aspects. At that juncture the
executing court has to be very cautious in supplementing its
interpretation and conscious of the fact that it cannot draw a
new decree. Now, it is to be ascertained as to whether the
claim petitioners have made out prima facie case to object the
execution proceedings.
19. Both the parties are depending on revenue entries to
establish their respective contentions. But it is trite law that
revenue entries do not confer any title and those revenue
entries are helpful in payment of land revenue only. However,
there is no dispute that original pattadar in respect of property
in dispute is none other than father of the defendant and the
defendant succeeded to the property after the demise of his
father. The claim petitioners, who have filed the claim petition
MGP, J
AS_59_2024
for declaring claim petitioner No.1 as absolute owner and
possessor of schedule property, are depending upon the
weakness of the defendant and plaintiff rather than succeeding
on their own strength. It is settled law that the person, who
claims title and ownership over a disputed property, has to
stand or fall on his own strength but cannot depend upon the
weakness of the opposite party. In Smriti Debbarma (dead)
through legal representative v. Prabha Ranjan Debbarama
and others 3 the Honourable Supreme Court observed that the
plaintiff has to succeed in establishing that she has a legal title
to the schedule property and defendants cannot be
dispossessed unless the plaintiff has established a better title
and rights over the schedule property. It was further observed
that a decree of possession cannot be passed in favour of the
plaintiff on the ground that defendants have not been able to
fully establish their right, title and interest in the property.
Except depending upon the revenue entries, the claim
petitioners have not placed any substantiate material to hold
that they have title and possession over the schedule property.
As stated supra, title over the property cannot be decided based
on mere revenue entries.
3 2022 Live Law SC (19)
MGP, J
AS_59_2024
20. Thus, viewed from any angle, the claim petitioners have
not established any of their contentions in setting aside the
impugned order for declaring claim petitioner No.1 as absolute
owner and possessor of the schedule property.
21. In view of the above facts and circumstances, this Court
do not find any merits in the appeal to set aside the impugned
order and in fact, the learned Executing Court Judge has
elaborately discussed all the aspects and arrived to a proper
conclusion in dismissing the claim application. Therefore, the
present appeal is devoid of merits and liable to be dismissed.
22. In the result, this appeal is dismissed. There shall be no
order as to costs.
As a sequel, pending miscellaneous applications, if any,
shall stand closed.
_______________________________
JUSTICE M.G. PRIYADARSINI
Date: 24.04.2024
Note: LR Copy to be marked.
B/o. AS
