Telangana High Court
K.Radhika vs Narender Pershad And 4 Others on 1 February, 2024
* THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
+ Civil Revision Petition No.201 OF 2019
% 01.02.2024
# Between:
K. Radhika Petitioner
Vs.
Narender Pershad and others Respondents
! Counsel for Revision Petitioner : Sri Ali Farooque
^ Counsel for Respondents : K.K. Wagherey
<GIST:
> HEAD NOTE:
? Cases referred :
1. 2007 (2) ALD 94
2. 2006 (5) ALD 838
3. AIR 2021 Supreme Court 2161
4. 1990 (2) ALT 487 (S.B.)
5. (2003) 8 Supreme Court Cases 289
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THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Revision Petition No.201 OF 2019
ORDER:
Aggrieved by the order dated 14.09.2018 (hereinafter will
be referred as 'impugned order') in E.A.No.39 of 2018 in
E.P.No.10 of 2017 in R.C.No.269 of 2011 passed by learned III
Additional Rent Controller, City Small Causes Court,
Hyderabad, the petitioners/JDRs filed the present Civil Revision
Petition.
2. For the sake of convenience, hereinafter, the parties will
be referred as per their array before the learned III Additional
Rent Controller, City Small Causes Court, Hyderabad.
3. The brief facts of the case as can be seen from the record
available before this Court are that the respondent/decree
holder filed R.C.No.269 of 2011 on the file of learned III
Additional Rent Controller, Hyderabad to evict his tenant by
name Gorakhnath but the said tenant was disputing the
relationship of landlord and tenant among them. The
respondent/decree holder filed an application under Section 11
(1) of the A.P. Buildings (Lease, Rent and Eviction) Control Act
with a prayer to direct the respondent to pay or deposit the
arrears of rent from September, 2007 to May, 2011 @ Rs.450/-
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per month and the said petition was dismissed. Aggrieved by
the same, the respondent/decree holder filed CRP No.2031 of
2013, wherein the order passed by the learned Rent Controller
was set aside and directed the tenant to deposit the arrears of
rent. The Respondent/decree holder obtained eviction order on
29.08.2017 directing the tenant to vacate the petition schedule
premises and subsequently E.P.No.10 of 2017 was also filed. In
the meanwhile, the tenant died on 15.12.2017 and his legal
representatives were brought on record. The legal
representatives of said Goraknath (tenant) i.e., the revision
petitioners herein have filed Special Leave Petition (Civil) Diary
NJos.35813 of 2018 challenging the order dated 03.02.2017 in
CRP No.2031 of 2013 and the Honourable Apex Court was
pleased to direct the parties to maintain status quo. However,
the said Special Leave Petition was ultimately dismissed.
4. One of the legal representatives of Goraknath by name K.
Radhika filed E.A.No.39 of 2018 in E.P.No.10 of 2017 under
Order XXVI Rule 9 and 18-A read with Section 151 of the Code
of Civil Procedure to appoint Advocate Commissioner to
measure the extent of property in H.No.4-8-8/1 along with the
outer boundaries to ascertain whether the extent is 350 square
yards as claimed by them or 40.5 square yards as claimed by
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the respondent/decree holder. In the said petition it was
contended that the EP schedule property does not match to the
property in existence in house bearing No.4-8-8/1 nor the
boundaries thereto are matching on the ground. It is further
contended that the property on ground comprises of 350 square
yards covered by the sale deed dated 17.02.1950 and whereas
the respondent/decree holder is claiming 40.5 square yards
quite in the middle of the property which belongs to them.
Thus, the revision petitioners prayed to appoint an Advocate
Commissioner to resolve the dispute by ascertaining the
property as to whether it is 350 square yards or 40.5 square
yards.
5. To the above said petition, the respondent/decree holder
filed counter by contending that his father died in the year 1948
and thus, the question of his father executing sale deed in
favour of Goraknath on 17.02.1950 does not arise and thereby
the said sale deed is false, forged and fabricated. It was further
contended that Goraknath has not disputed about the
boundaries and the extent of property either in the RC
proceedings or EP proceedings and once the tenant has not
disputed the boundaries and extent, his legal heirs are not
expected to raise such plea independently. It was further
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contended that there is an injunction order against the
deceased V. Goraknath and his son or any other person
claiming through them from interfering or disturbing the
possession of the respondent over an extent of 1000 square
yards as per orders dated 16.08.2011 in I.A.No.447 of 2011 in
O.S.No.1723 of 2011 on the file of learned III Junior Civil Judge,
City Civil Court at Hyderabad. Finally the respondent
contended that the petitioner to appoint advocate commissioner
was filed only to delay and drag the execution of warrant and
thus, prayed to dismiss the petition. On considering the rival
contentions, the learned III Additional Rent Controller, City
Small Causes Court, Hyderabad dismissed the application.
Aggrieved by the same, the petitioner/JDRs filed the present
Civil Revision Petition to set aside the impugned order.
6. Heard both sides and perused the record including the
grounds of revision.
7. The contention of the revision petitioner is that her father
filed O.S.No.1035 of 2017 before the learned Chief Judge, City
Civil Court at Hyderabad for declaration and possession in
respect of disputed land of 40.5 square yards. On the other
hand, the respondent contended that there is an injunction
order against the deceased V. Goraknath and his son or any
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other person claiming through them from interfering or
disturbing the possession of the respondent over an extent of
1000 square yards as per orders dated 16.08.2011 in I.A.No.447
of 2011 in O.S.No.1723 of 2011 on the file of learned III Junior
Civil Judge, City Civil Court at Hyderabad and that the
unregistered sale deed claimed to have been executed by father
of the respondent/decree holder in favour of father of revision
petitioner is forged and fabricated. However, it is pertinent to
note that the dispute to be resolved in this Civil Revision
Petition is whether an Advocate Commissioner can be appointed
or not to measure the disputed land.
8. The contention of the revision petitioner is that she filed
E.A.No.39 of 2018 seeking appointment of an advocate
commissioner to measure the extent of property in H.No.4-8-
8/1 since the decree holder cannot be allowed to obtain
possession of entire 350 square yards instead 40.5 square yards
and that the petition schedule property in R.C.No.269 of 2011 is
not identifiable since it is vague. It is pertinent to note that in
the petition before the execution Court it was mentioned that
the property on ground comprises of 350 square yards covered
by the sale deed dated 17.02.1950 and whereas the
respondent/decree holder is claiming 40.5 square yards quite in
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the middle of the property which belongs to them. The father of
the revision petitioner disputed the tenant and landlord
relationship between himself and decree holder has never raised
the dispute of identity of the property. On the other hand, the
revision petitioner, who being legal representative of tenant was
brought on record, is contending that the premises of 40.5
square yards as claimed by the landlord is in the middle of 350
square yards and it belongs to them.
9. In Vadlamani Suryanarayana Murthy v. Saripalli
Balakameswari by LRs 1 the High Court for the erstwhile State
of Andhra Pradesh observed that if any property other than the
one specified in the schedule is sought to be proceeded against,
the respondents can certainly put forward their grievance, and
it shall always be competent for the executing Court, to
adjudicate the same. However, it was further observed that the
appointment of a Commissioner, in matters of this nature,
would amount to reopening the entire issue, and may even lead
to a situation of annulling the decree, as a whole. In Chakka
Ranga Rao v. Molla Mustari Banu 2, the High Court for the
erstwhile State of Andhra Pradesh observed that if the areas
and portions purchased by the respondent and revision
2007 (2) ALD 94
2006 (5) ALD 838
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petitioner are identified, localized and demarcated, the area
encroached by the revision petitioner into the site belonging to
the respondent can easily be known and in such circumstances,
it is just and expedient to appoint a Commissioner. In Rahul S.
Shah v. Jinendra Kumar Gandhi and others 3 the Apex Court
observed that where the possession is not in dispute and not a
question of fact for adjudication before the Court, the Court may
appoint Commissioner to assess the accurate description and
status of the property.
10. The plea taken by the revision petitioner is altogether a
new plea, which was not raised by the tenant, who is the father
of the revision petitioner either in the RC proceedings or EP
proceedings. It is settled law that the legal representatives are
not entitled to take inconsistent or contradictory plea on the
admitted facts made by the deceased and that the legal
representatives are not entitled to take any defence relating to
their independent rights. In this regard, learned counsel for the
respondent relied upon a decision in G. Purnachandra Rao and
others v. K. Rama Rao 4 wherein the High Court for the
erstwhile State of Andhra Pradesh held as under:
"Further, when a party dies, his legal representatives are
appointed merely in order that the proceedings may be, continued
AIR 2021 Supreme Court 2161
1990 (2) ALT 487 (S.B.)
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and a decision arrived at. it is the rights and disabilities of the
original party that have to be considered and no those of the legal
representatives themselves, except in certain exceptional cases.
Therefore, all that the legal representatives can, is to take the
proceedings at the stage at which it was left when the original
petition died, and to continue it. The legal representatives can only
rely on the same cause of action and on the same title as the
deceased original landlord. Likewise, the legal representatives are
not entitled to take any fresh point which was not raised by the
original landlord."
11. In Ravinder Kaur v. Ashok Kumar and another 5 the
Apex Court observed as under:
"The objection that the High Court referred to in the impugned order
raised by the respondent herein was in regard to the correctness of the site
plan. This very issue was specifically raised in the original ejectment
proceedings and was held against the respondents based mainly on the
admission of the first respondent. This question of identity of the property was
never again raised in the appeal before the appellate authority, in the revision
before the revisional authority, namely, the High Court or in the SLP before
this Court. In such circumstances, we fail to understand how this very issue
can be re-agitated in the execution proceeding by the tenants. The executing
court has rightly observed that re-opening of this issue would amount to
asking that court to go behind the decree which is impermissible in law."
12. It is the contention of the revision petitioner that her
father Goraknath purchased premises bearing No.4-8-8/1
admeasuring 350 square yards situated at Putli Bowli,
Hyderabad under a registered sale deed dated 17.02.1950 from
the father of the respondent No.1/decree holder i.e. late
Jaishanker Das and after the death of Goraknath, the revision
petitioner is the possessor of the said premises. The decree
holder filed R.C.No.269 of 2011 seeking eviction of father of the
revision petitioner and described the application schedule
property as 40.5 square yards in H.No.4-8-8/1, Putlibowli,
(2003) 8 Supreme Court Cases 289
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Hyderabad to which the father of the revision petitioner filed
counter disputing the existence of jural relationship of landlord
and tenant and pleading that he is the exclusive owner of the
schedule property under the sale deed referred above. But the
respondent/decree holder clearly stated that his father passed
away in the year 1948 and thus, the execution of sale deed by
his father in the year 1950 in favour of father of revision
petitioner does not arise. It is to be noted that the said aspect
was decided in R.C.No.269 of 2011, which was not challenged
either by the revision petitioner or her father and thereafter the
respondent/decree holder filed E.P.No.10 of 2017, wherein
order was passed on 18.07.2018 against which no appeal was
preferred by revision petitioner. Surprisingly, the revision
petitioner in a petition filed under Order XXVI Rule 9 of the
Code of Civil Procedure has been raising all the above pleas.
13. It is contended by the revision petitioner that the Rent
Control Case was not decided on merits and in fact for default
in compliance of an order under Section 11 of the Act, an
eviction decree was passed. If at all the Rent Control Case was
not decided on merits, the revision petitioner ought to have
taken necessary steps as per law but there is no such instance
in the case on hand.
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14. The contention of the respondent is that the Civil Revision
Petition is filed to drag on the warrant of delivery of possession
apart from suppression of material facts and a fraud that is
played on every Court by not only the revision petitioner but
also by respondent Nos.2 to 5. Based on the fabricated, forged
and unregistered alleged sale deed, the revision petitioner and
respondent Nos.3 to 5 jointly filed Special Leave Petition (SLP)
No.26472 - 73 of 2018, wherein initial ex parte stay was granted
on 26.09.2018, however, the SLP No.26472 - 73 of 2018 was
dismissed on 03.10.2023 and thereby the alleged sale deed was
rejected.
15. It is further contended by the respondent/decree holder
that the revision petitioner and his family members i.e.,
respondent Nos.3 to 5 with mala fide intention to mislead the
Court, have shown their residence as 4-8-8/1, Putlibowli,
Hyderabad, whereas they are all residing at 4-8-71, Putlibowli,
Hyderabad, which is evident not only from the factum of
receiving notices of caveat on the address at 4-8-71 and also the
postal acknowledgments.
16. As per the contention of respondent/decree holder when
the eviction orders were sought to be executed, the warrant of
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delivery of possession was issued by the Court in execution
proceedings on 29.11.2017 and when the Bailiff went to execute
the warrant, the tenant created law and order problem and
thereby the first warrant was returned unexecuted. On an
application by the respondent No.1/decree holder in E.A.No.52
of 2017, police directions were issued for executing the warrant
but when the Bailiff along with police aid went to execute the
second warrant, the premises was locked and thus, the second
warrant was also returned. Thus, the decree holder was
constrained to file E.A.No.24 of 2017 but when the Bailiff
intended to execute the warrant of delivery of possession before
26.09.2018, the premises was already vacated and a wall was
raised at the entrance door, which was also locked. On that the
Bailiff after breaking open the lock found that there is no access
to the house because of the wall, as such the warrant was
returned unexecuted.
17. As contended by the learned counsel for the respondent,
the decree holder filed another E.A.No.26 of 2017 seeking to
break open the lock to demolish the wall at the entrance and to
remove all obstructions and hurdles for entering the E.P.
Schedule premises but when the Bailiff went to execute the
warrant on 18.12.2017, he was informed that the judgment
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debtor expired on 15.12.2017 and thus, the warrant remained
unexecuted. In the meanwhile, the Legal Representatives of
deceased tenant approached the Honourable Supreme Court
and filed SLP No.26472 of 2018 and obtained status-quo orders.
Throughout the proceedings and at every stage of the warrant
that was issued, schedule of property was shown as 40.5 square
yards and the same was never objected at any time. However,
after dismissal of the SLP No.26472 of 2018, when the Bailiff of
the Court went to the petition premises and found that the wall
at the entrance is still intact and is in existence, the warrant
was returned on 17.10.2023 by specifically mentioning about
the high handed behaviour of the revision petitioner. It is the
contention of the respondent/decree holder that the premises is
vacant since 2017 as the wall is in existence even today and
none can enter the premises and admittedly the daughters of
deceased tenant are all married and are not residing at the
petition schedule premises.
18. As seen from the record, the warrant for delivery of
possession was unexecuted on several occasions. Though the
revision petitioner and others have approached SLP No.
No.26472 of 2018, it was dismissed by the Honourable Supreme
Court. As discussed above, the Rent Control Case is of the year
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2011 and though the decree holder succeeded in the Rent
Control Case, until now warrant of delivery of possession could
not be executed for the reasons stated above. It appears that
that the revision petitioner and respondent Nos.3 to 5 are
intending to prolong the proceedings without being in
possession of the petition schedule property and adopting all
methods by abusing the process of law, thereby trying to delay
the execution proceedings and to defeat the legitimate rights of
the respondent herein. On one hand, the revision petitioner is
disputing the title of the property and on the other hand the
revision petitioner is disputing the identity of the property.
Thus, the revision petitioner is trying seriously to take each and
every possible plea that is available to her to drag the execution
proceedings to the possible extent. Thus, viewed from any angle
the revision petitioner has not made out any grounds to
establish that there is a dire necessity to appoint advocate
commissioner to resolve the dispute between the parties.
19. In these circumstances, this Court is of the opinion that
the learned Rent Controller has rightly dismissed the petition by
giving cogent and justifiable reasons in the impugned order
dated 14.09.2018 and thereby this Court do not find any merits
in the revision to interfere with the impugned order. It is also to
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be seen that appointment of advocate commissioner is a
discretionary power of the Court and the Executing Court by
exercising its discretionary power observed that warrants earlier
issued were not returned on the endorsement by the bailiff that
the extent is not tallied or boundaries are not tallied, as such
the petition to appoint advocate commissioner is not
maintainable. Moreover, the present Civil Revision Petition is
filed under Article 227 of the Constitution of India, wherein the
scope and ambit of High Court to interfere with the findings of
the trial Court is very limited to a supervisory role. As seen
from the grounds of revision, the revision petitioner failed to
bring out any of the grounds showing that there is an error
apparent on the face of the record to set aside the impugned
judgment. Therefore, there are no merits in the Civil Revision
Petition and thereby it is liable to be dismissed.
20. Accordingly, the Civil Revision Petition is dismissed.
There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand
closed.
_______________________________
JUSTICE M.G.PRIYADARSINI
Date: 01.02.2024
Note: LR Copy to be marked
B/o.AS
