When both the parties have filed pahanies for the year 2008-2009. Unless their authenticity is verified during the trial of the suit, it is not possible for the lower Court to render a finding, prima facie or otherwise, with respect thereto. As each party is claiming that he/she is in physical possession of the suit property, it is appropriate that they maintain status quo as on today with respect the same. This shall necessarily mean that whoever is in physical possession of the suit property shall be allowed to continue in possession till disposal of the suit. The lower Court is directed to dispose of the suit within a period of three months from the date of receipt of this order.


HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        

C.R.P.No.273 of 2010

19-1-2012

Maloth Veeru @ Heeralal and others

Guguloth Mangi w/o. Balu

Counsel for petitioners: Sri M. Rajamalla Reddy

Counsel for respondent : Sri P.V. Ramana

ORDER:
        The petitioners, who are the defendants in O.S.No.108/2009 filed by the
respondent, filed this Civil Revision Petition feeling aggrieved by the order
dated 23-12-2009 in I.A.No.146/2009 in O.S.No.108/2009 on the file of the
learned Sub-Divisional Magistrate (Mobile Court), at Bhadrachalam (for short
"the lower Court").
The petitioners and the respondent have competing claims with respect to Ac.0-26
guntas of land in Chunchupalli village, Kothagudem Mandal, Khammam District (for
short "the suit property").  While it is the case of the petitioners that they
have become the lawful owners of the suit property having purchased the same
under registered sale deed dated 19-8-2009 executed by its lawful owner, the
respondent pleaded that it is her self-acquired property and that she is in
possession of the same.  In support of the plea of the respondent, she has filed
pahanies from the years 1999-2000 upto the year 2008-2009.  The petitioners have
also filed pahani for the year 2008-2009.  The lower Court has called for report
dated 15-12-2009 from the Tahsildar and has placed reliance on the same in
addition to placing reliance on the pahanies submitted by the respondent in
coming to the conclusion that the respondent is in possession of the suit
property.  Even though it is the case of the petitioners before this Court that
the lower Court has failed to consider the pahani for the year 2009-2010,
unfortunately as no documents have been marked on either side by the lower
Court, it is not possible to accept this plea of the petitioners.
Be that as it may, from a perusal of the order under revision, I am of the
opinion that the lower Court has committed a fundamental error in calling for
the report from the Tahsildar and placing reliance on the same.  The lower Court
is discharging the functions of a Civil Court in the Agency Areas. Placing
reliance on a report without summoning its author and examining him is something
alien to the procedure before a Civil Court.  If the lower Court felt the
necessity of eliciting the opinion of the Tahsildar regarding physical
possession of the suit property, the appropriate course for it would have been
to summon the Tahsildar and examine him as a Court witness. Such a procedure
would have ensured that opportunity is given to both the parties to cross-
examine such witness.  By calling for a report from the Tahsildar and placing
reliance thereon without giving an opportunity to the petitioner to cross-
examine the Tahsildar, the lower Court has committed a serious jurisdictional
error.  It has also committed another serious error in rendering a prima facie
opinion that No.3 pahani extract produced by the petitioners for the year 2008-
2009 is a created one. No reasons whatsoever have been assigned by the lower
Court in giving such a prima facie finding.  The said finding, therefore, is
wholly unsustainable.
The facts noted above would show that both the parties have filed pahanies for
the year 2008-2009.  Unless their authenticity is verified during the trial of
the suit, it is not possible for the lower Court to render a finding, prima
facie or otherwise, with respect thereto.  As each party is claiming that he/she
is in physical possession of the suit property, it is appropriate that they
maintain status quo as on today with respect the same.  This shall necessarily
mean that whoever is in physical possession of the suit property shall be
allowed to continue in possession till disposal of the suit.  The lower Court is
directed to dispose of the suit within a period of three months from the date of
receipt of this order.
Subject to the above directions, the Civil Revision Petition is disposed of.
As a sequel, CRP.M.P.No.409/2010 is disposed of as infructuous.

________________________  
Justice C.V. Nagarjuna Reddy
Date : 19-1-2012

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515