appreciation of evidence = This claim of the appellant is evidently untenable because when the suit was pending and when possession was not obtained by the decree holder, it is difficult to believe that when the execution petition was filed, she could have inducted the appellant into possession of the property. Ex.P1-residence certificate and also Exs.P2 to P4 are brought into existence and the same cannot be ruled out.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD

FRIDAY, THE FIRST DAY OF MARCH
TWO THOUSAND AND THIRTEEN

 

PRESENT

 

THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO

 

C.M.S.A.No.44 of 2012

                                                                                

 

Between:

Dara Mani

..... APPELLANT

And

Kakinada Sarada and another

.....RESPONDENTS

The Court made the following:

                                                                                 

 

THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO

 

C.M.S.A.No.44 of 2012

JUDGMENT:

The petitioner in E.A.No.1154/2009 in E.P.No.262/2009 in O.S.No.190/2006 on the file of the I Additional Senior Civil Judge, Rajahmundry is the appellant herein.

The application was filed under Order 21 Rule-97 CPC claiming that the appellant herein is the tenant of the premises and a collusive decree was obtained by the respondent/decree holder and in pursuance of the said decree, the appellant is sought to be evicted forcibly.

According to the case of the appellant, the premises was given to her on lease in August, 2009.  The respondent/decree holder has contended that the alleged lease is not true and she has obtained certain documents from the Mandal Revenue Officer, which are not valid.  According to her, when the EP was filed, the delivery was sought to be effected on 09.10.2009, but due to holidays, it cannot be executed. 

The Court below after considering the evidence on record and also the documents came to the conclusion that the claim of the appellant is not bona fide.  As against that order A.S.No.47/2012 was filed and the lower appellate Court has dismissed the said appeal.  Aggrieved by the said judgment, the present appeal is filed.

The Second Appeal was admitted without framing any substantial question of law that arises for consideration.  However, after going through the grounds of appeal, the only question that stands for consideration is whether the claim of the appellant under Order 21 Rule-97 CPC is legal and sustainable?

Point:

Evidently, the suit O.S.No.190/2006 was filed for eviction and the same was decreed on 09.07.2009.  Thereafter, EP was filed and delivery was ordered.  According to the case of the appellant, the tenancy is said to have been created in August, 2009.  This claim of the appellant is evidently untenable because when the suit was pending and when possession was not obtained by the decree holder, it is difficult to believe that when the execution petition was filed, she could have inducted the appellant into possession of the property.  Even otherwise, the appellant has filed O.S.No.789/2009 on the IV Additional Junior Civil Judge, Rajahmundry for injunction and initially the injunction was dismissed and thereafter as against the refusal of injunction, CMA was filed and the lower appellate Court has dismissed the CMA also. In fact, there is said to be a serious doubt about the documents relied on by the appellant.  In fact an opinion was given by the Executing Court that Ex.P1-residence certificate and also Exs.P2 to P4 are brought into existence and the same cannot be ruled out.  As a question of fact, both the Courts below have found that the appellant is not in possession of the property and consequently being a question of fact, it has to be decided after taking evidence of both sides, which does not appear to be against the evidence available on record.

I find no question of law much less substantial question of law that arise for consideration in this appeal or misappreciation of evidence by the Court below.  The Appeal has no merit and the same is accordingly dismissed.  However, if the appellant is in possession of the property in question, four weeks time is granted from this day for vacation of the premises, and she shall abide by the execution proceedings, which were initiated in the original suit.  Interim stay granted on 19.10.2012 shall stand vacated, CMSA MP Nos.125/2012 and 7/2013 shall stand dismissed in consequence.  No order as to costs. 

____________________________

N.R.L.NAGESWARA RAO,J

Dated: 01.03.2013

Dsr