Sirigireddy Parameswar Reddy v. The Hari Constructions Andb Developers

HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO Civil Revision Petition No.1604 of 2017 ORDER:

This Civil Revision Petition is filed by the petitioners/defendants aggrieved by the order dated 13.02.2017 in C.M.A.No.8 of 2016 passed by Principal District Judge, Kadapa, whereunder the learned Judge confirmed the temporary injunction granted in I.A.No.3413 of 2015 in O.S.No.503 of 2015 on the file of Principal Senior Civil Judge, Kadapa. 2) The parties are referred as they were arrayed in the suit before the trial Court.

3a) The respondent/plaintiff filed the suit for declaration of title and permanent injunction contending that originally the suit schedule property belonged to one Kadasani Rami Reddy and he executed General Power of Attorney in favour of Putha Ramachandra Reddy on 19.11.1977 to sell the lands covered by suit Sy.No.683/2 and also other survey numbers. In pursuance, the said Ramachandra Reddy, made plots and sold the same to others including the vendor of the plaintiff i.e, Gopala Krishna Rao. The said Gopala Krishna Rao purchased plot No.101 in an extent of Ac.0.05cents in Sy.No.683/2 out of Ac.1.00cents under registered sale deed dated 01.05.1978 and from the said Gopala Krishna Rao, the plaintiff purchased the said Ac.0.05 cents of land situated in Sy.No.683/2 under registered sale deed dated 28.11.2015 and since then he is in peaceful possession and enjoyment of the plaint schedule property. The plaintiff

further contended that on 30.11.2015, the defendants came to the suit schedule property and threatened him that they are owners of the suit property and that they have got right in suit property. Hence the suit. b) The petitioners/defendants filed the written statement and denied the location and existence of plot No.101 claimed by plaintiff in Sy.No.683/2 of Chinna Chowk village and contended that the said plot may be elsewhere but not in the locality where the defendants' plots are in existence wherein they were making constructions after getting approval of the plan from the Municipal Corporation, Kadapa. The defendants contended that the plaintiff in order to knock away their property, mentioned wrong description in the schedule and filed the instant suit. The defendants narrated the method and manner in which they obtained Ac.0.

06 cents each in the plots bearing Nos.15, 16 and 17. The defendants claimed that they were in possession and enjoyment of the suit property with absolute rights and the 1st defendant has constructed a house in his site and the Municipal authorities assigned Door No.36/256-56-1-2 and he paid property tax for the said house. Whereas 2nd defendant got water tap connection in his site by paying necessary charges and after approval of the plan from the Municipal Corporation, he started making constructions. Thus the defendants prayed to dismiss the suit. c) The plaintiff filed I.A.No.3413 of 2015 in O.S.No.

defendants had no right, title and possession over the suit schedule property as on the date of suit as the documents filed by them did not correspond to the suit property.

d) Aggrieved, the defendants preferred C.M.A.No.8 of 2016 before the Principal District Judge, Kadapa, wherein the learned Judge dismissed the appeal by confirming the temporary injunction order dated 04.07.2016 in I.A.No.3413 of 2015 in O.S.No.503 of 2015 on the file of Principal Senior Civil Judge, Kadapa.

Hence the CRP by defendants.

4) Heard both sides.

5) A perusal of the impugned orders would give an understanding that both the Courts below committed mistake in appreciating the real controversy involved in this case. In O.S.No.503 of 2015, the plaintiff's case is that the suit property originally belonged to Kadasani Rami Reddy and he executed a GPA in favour of one Putha Ramchandra Reddy on 19.11.1977 permitting him to sell the property and accordingly the GPA holder divided the landed property of Kadasani Rami Reddy into several plots and sold Ac.0.05cents in Sy.No.683/2 out of Ac.1.00cents on 01.05.1978 to plaintiff's vendor. Thereafter, plaintiff's vendor sold the suit plot bearing No.101 in an extent of Ac.0.05 cents with specific boundaries to plaintiff under registered sale deed dated 28.11.2015 and that is how the plaintiff got the suit property and defendants without any iota of right therein, are

meddling with the same. With these allegations he filed the suit for declaration and permanent injunction.

6) Be that it may, it is the specific case of the defendants as can be seen from their written statement that the suit property with the description mentioned in plaint schedule is not in existence. The defendants denied the location and existence of plot No.101 in Sy.No.683/2 in Chinna Chowk village as claimed by the plaintiff. As per their contention, the suit plot No.101 may be elsewhere but not in the locality where the defendants' plots are in existence wherein they are making constructions after getting approval of the plan from the Municipal Corporation. Then the defendants in their written statement have narrated the method and manner in which they obtained Ac.0.06 cents each in the plots bearing Nos.15, 16 and 17. They claimed to have purchased those properties from the rightful owners.

The 1st defendant constructed house in his site and municipal authorities assigned Door No.36/256-56-1-2 and he has been enjoying the same. The 2nd defendant got the water tap connection in his site by paying necessary charges. It is their further contention that at the instance of the plaintiff a surveyor in fact went to identify the plaint schedule property but could not identify the same and on the other hand he found the defendants constructing the house in their respective plots.

trying to usurp the property of defendants. Hence it is needless to emphasize that the location of the plaint schedule property on ground is the bone of contention in the suit on hand. However, both the Courts below having perused the plaint schedule property and compared with the documents filed by the plaintiff, appeared to have satisfied that the documents were tallying with the plaint schedule and granted interim injunction without answering the contention of the defendants that the plaint schedule property is not existing on ground. In a case of this nature where location and identification of the property is staunchly and strongly opposed by the opposite party, the Court has to appoint an Advocate Commissioner to localise the suit property with reference to the relevant documents and then proceeded with the suit.

The reason is that the Court cannot resolve that issue by just verifying the documents unless it undertakes an exercise of conducting physical verification of the property through an Advocate Commissioner. Unfortunately that exercise was not done in this case. Therefore, the interim injunction granted by the trial court and confirmed in CMA No.8 of 2016 by the lower appellate Court is liable to be set aside and hence vacated. 8) In the result, this CRP is allowed by setting aside the impugned orders passed by both the Courts below. Consequently, the interim injunction granted by the trial Court in I.A.No.3413 of 2015 in O.S.No.

503 of 2015 is set aside and the trial Court is directed to appoint an Advocate Commissioner at the expense of the plaintiff to localise the suit property with the help of Revenue and Municipal Surveyors and also relevant records. Thereupon, the trial Court shall dispose of the I.A.No.

on merits. The aforesaid entire exercise shall be completed within three(3) months from today and till then the defendants shall not proceed with further constructions. No costs.

As a sequel, miscellaneous petitions pending, if any, shall stand closed.

_________________________ U. DURGA PRASAD RAO, J Date: 12.07.2017 scs