THE HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.1254 of 2014 Date : 24-04-2014 Between :
Chimata Saraswathamma and others. …. Petitioners.
And Midisenametla Saidulu and others. …. Respondents.
Counsel for the Petitioners : Sri A.Ushi Reddy Counsel for respondents : -- NA --
This Court made the following:
THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO CIVIL REVISION PETITION No.1254 of 2014 ORDER :
This Revision is filed challenging the judgment and decree dt.13-03-2009 in C.M.A.No.2 of 2009 of the Senior Civil Judge, Miryalaguda reversing the order dt.13-02-
2009 in I.A.No.199 of 2008 in O.S.No.52 of 2008 of the Principal Junior Civil Judge, Miryalaguda.
2. The petitioners herein are plaintiffs in the above suit. They filed the suit for a perpetual injunction restraining the respondents/defendants from interfering with their peaceful possession and enjoyment of the plaint schedule property, which is an extent of Ac.2-17 gts in Sy.No.696 of Alagadapa village, Miryalaguda Mandal. In this suit, they pleaded that plaint schedule property is ancestral property, which was inherited from late Saidaiah, husband of 1st petitioner and father of petitioner Nos.2 to 4, who allegedly died in the year 1987 intestate. They filed pahanis from 1987-88 to 2004-05 in support of their case.
3. Along with the suit, they also filed I.A.No.199 of 2008 seeking temporary injunction against respondents restraining them from interfering with the peaceful possession and enjoyment of the petitioners over the plaint schedule property till disposal of the suit.
4. The respondents filed the written statement denying the plaint averments and contended that the father of the 1st defendant and other defendants are real brothers and they had jointly purchased the entire land in Sy.No.696 of the said village and other lands in the said Survey Number about 40 years ago from the husband of 1st plaintiff and father of plaintiffs, Chimata Pedda Saidaiah and his brothers; they have been absolute owners and possessors of the entire land in Sy.No.696 since then; they had filed O.S.Nos.291 of 1987, 281 of 1987 and 285 of 1987 before the District Munsif, Miryalaguda for declaration of title and perpetual injunction against the husband of 1st plaintiff and others; that the said suits were also decreed; taking advantage of the fact that mutation was not done in the Revenue Records by respondents, the petitioners have filed the suit.
5. Before the trial Court, the petitioners marked Exs.P-1 to P-12 while respondents marked Exs.R-1 to R- 29.
6. By order dt.13-02-2009, I.A.No.199 of 2008 was allowed by the trial Court. The trial Court held that Exs.P-1 to P-12 proves the possession and enjoyment of plaint schedule property by petitioners and Exs.R-1 to R-
29 did not disclose the possession and cultivation of respondents. It held that while the petitioners are claiming owners of Ac.2-17 gts in Sy.No.696, Exs.R-1 to R-29 disclose that respondents are in possession and enjoyment of Ac.3-14 gts in the total extent of Ac.5-00 gts in Sy.No.696 and therefore, the parties are in possession of different extents of land.
7. Challenging the said order, C.M.A.No.2 of 2009 was filed before the Senior Civil Judge, Miryalaguda.
8. By order dt.13-03-2009, the said appeal was allowed. The lower appellate Court held that Exs.P-1 to P- 12 filed by petitioners were only upto 2004-2005 and they relate to only Ac.3-22 gts in Sy.No.696. It held that the pahanis for the year 2005 to 2007 do not disclose the names of petitioners but show that an extent of Ac.1-04 gts of land in the name of 3rd respondent, Ac.0- 25 gts of land in the name of 2nd respondent and another Ac.1-00 gts of land in the name of Sunkari Pushpalatha. It also referred to Ex.R-29 and held that the husband of 1st petitioner was a party to it and in that suit, the father of respondent Nos.1 to 3 had obtained a declaration of his title and permanent injunction in respect of the land in Sy.No.696 against the husband of 1st petitioner. It held that the lands covered by decrees in the 3 suits mentioned above are to the tune of Ac.3-12 gts. It therefore held that the documents filed by respondents go to show that they are in possession and enjoyment of the land in Sy.No.696 on the date of filing of suit while the documents filed by petitioners are only upto 2004. It also rejected the contention of petitioners that respondents are in possession of Ac.3-17 gts of land in Sy.No.696 and the remaining land of extent of Ac.2-17 gts is in their possession, since there was no such pleading or proof. It also held that the presumption of the trial Court that the total extent of land in Sy.No.696 is more than Ac.5-00 gts is without any basis.
9. Challenging the same, this Revision is filed.
10. The learned counsel for petitioners strenuously contended that late Saidaiah had died in the year 1987 itself and therefore, the decrees in O.S.Nos.281 of 1987, 285 of 1987 and 291 of 1987 were obtained after his death and are therefore a nullity and vitiated by fraud. He also stated that a comprehensive suit for declaration of title has been filed by petitioners (O.S.No.332 of 2012 before the Additional District Judge, Miryalaguda) and that the present suit is being tried along with the said suit. He also contended that the findings of the lower appellate Court basing on Ex.R-29 decree required to be set aside.
11. In support of the plea that the husband of 1st petitioner had died in the year 1987 or prior thereto, no material is placed by the petitioners either before the trial Court or before the lower appellate Court. Even in the grounds of appeal in the C.M.A., such a plea has not been raised. The petitioners cannot be allowed to raise such a plea for the first time in the Revision without any supporting evidence. Admittedly, pahanis filed by petitioners are only upto 2004-2005 while the suit was filed in the year 2008. The lower appellate Court has held that the pahanis filed by respondents subsequent to 2004 upto 2008 disclose the possession of respondents and not that of the petitioners.
12. In this view of the matter, I do not find any error of jurisdiction in the order passed by the lower appellate Court warranting interference by me in exercise of power under Article 227 of the Constitution of India. I, therefore, do not find any merit in the Revision and the same is accordingly dismissed. No costs.
13. However, the Court deciding O.S.No.52 of 1998 and O.S.No.332 of 2012 shall decide the said suit uninfluenced by the observations made in the order of the trial Court in I.A.No.199 of 2008 in O.S.No.52 of 2008 or C.M.A.No.2 of 2009 of the lower appellate Court or by this Court in this Revision.
14. Miscellaneous applications pending if any in this Revision shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date: 24-04-2014 vsv