HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY C.R.P.Nos.1084, 1085 and 1086 of 2014 Date : 4-9-2014 C.R.P.No.1084 of 2014 Between :
Gajjala Janardhan Reddy and others ..
Petitioners And Food Corporation of India Employees Cooperative Housing Society Limited, Hyderabad, represented by its Secretary, Vanasthalipuram, Ranga Reddy District and others ..
Respondents Counsel for petitioners : Sri B. Venkat Rama Rao Counsel for respondent No.1 : Sri K.K. Chakravarthy Counsel for other respondents : Sri Ranga Rao Nellutla The Court made the following :
COMMON ORDER:
These three Civil Revision Petitions arise out of common order dated 24-2-2014 in I.A.Nos.50, 51 and 52 of 2014 in O.S.No.477 of 2005 on the file of the learned VII Additional Senior Civil Judge, Ranga Reddy District, at L.B. Nagar, Hyderabad. Hence, they are heard and being disposed of by this common order.
The petitioners filed the above mentioned suit for perpetual injunction restraining the respondents from causing interference with their peaceful possession and enjoyment of Ac.4-20 guntas of land in Sy.Nos.57/F, 57/E and 57/C of Karmanghat village, Saroornagar Mandal, Ranga Reddy District. During the course of evidence of the defendants, Ex.B-1 was marked through DW-1 on 23-12- 2013. The said document pertains to the purported sanctioned layout plan of the Gram Panchayat concerned. Before the evidence on the defendants’ side was completed, the petitioners have filed the above mentioned three I.As., i.e., I.A.No.50 of 2014 for reopening the plaintiffs’ evidence and for examining the licensed surveyor, I.A.No.51 of 2014 for recalling PW-1 for the purpose of marking the licensed surveyor’s calculated layout, and I.A.No.52 of 2014 to receive the calculated layout plan issued by the licensed surveyor. All these applications have been dismissed by the lower Court by common order dated 24-2-2014.
It is the pleaded case of the petitioners that as per Ex.B-1 layout plan, the area of the total plots if properly calculated comes to Ac.27-98 guntas (sic: cents?) though the same was mentioned in terms of sq. yards equivalent to Ac.25-20 guntas. The petitioners have therefore prepared a plan through a surveyor showing the purported correct area as per the measurements of plots shown in Ex.B-1. The petitioners thereby seek to demonstrate that even according to Ex.B-1, the defendants have encroached upon a part of the suit schedule property admeasuring Ac.4-20 guntas.
The lower Court has dismissed the applications mainly on the grounds, namely, that the proposed document prepared without the knowledge and consent of the defendants is sought to be proved by PW-1 and not by examining the surveyor; that such a document which was admittedly prepared without the knowledge and consent of the defendants can never be permitted to be proved by a person who has not prepared that document; that as per the pleadings on both sides, each side has pleaded that it is in possession of the suit schedule property; and that the suit was filed eight years ago and the petitioners have filed these petitions at a belated stage.
I have carefully considered the submissions of Sri B. Venkat Rama Rao, learned Counsel for the petitioners and Sri K.K. Chakravarthy, learned Counsel for the respondents.
The main issue in controversy in the suit is whether the respondents/defendants are in possession of any extent in excess of Ac.25-20 guntas or not. While it is the case of the petitioners that the respondents are trying to encroach upon the land admeasuring Ac.4-20 guntas retained by them after sale of the land to respondent No.1, it is the pleaded case of the respondents that they are in possession of the property as per Ex.B-1 layout plan i.e., Ac.25-20 guntas only. Undisputedly, Ex.B-1 plan was marked only on 23-12-2013 through DW-1 and within a few days therefrom, the petitioners have come out with the above mentioned three applications. The observation of the lower Court that the petitioners want to prove the proposed plan prepared by a licensed surveyor, through PW-1 is factually incorrect, for, in I.A.No.50 of 2014, the petitioners made the following prayer :
“For the reasons stated in the accompanying affidavit it is therefore prayed that this Hon’ble court may be pleased to re-open the plaintiff’s evidence for the purpose of recalling the PW-1 and examine (sic) the licensed surveyor in the interest of justice ...”
It could be noticed from page-3 of the order of the lower Court that it has described I.A.No.50 of 2014 as filed under Section 151 CPC to reopen the evidence on the plaintiffs’ side. The lower Court has thus failed to properly understand the scope of I.A.No.50 of 2014, as a result of which it has made an erroneous observation that the petitioners seek to prove the proposed surveyor’s plan through PW-1. The prayer in I.A.No.50/2014 is somewhat comprehensive, in that, it sought reopening of the plaintiffs’ evidence, recalling of PW-1 and permission to examine the licensed surveyor. Therefore, the main reason on which the lower Court has dismissed the applications suffers from serious factual error.
As regards the reason given by the lower Court that the applications are belated, in rendering this finding the lower Court has evidently taken into consideration the date on which the suit was filed. While considering whether an application filed by a party is belated or not, the date of suit alone is not the criterion. The Court must examine whether the applicant could have come out with the same application at an earlier point of time or not. The petitioners have clearly explained that the cause for them to adduce additional evidence has arisen consequent upon the respondents marking Ex.B-1 on 23-12-2013. Therefore, on the facts of this case, the date of filing of the suit has no relevance. But for marking of Ex.B-1 by the respondents/defendants, the occasion for the petitioners to get a plan prepared by the surveyor and file the same would not have arisen at all. The lower Court has lost sight of this relevant aspect and incorrectly termed the applications as belated.
For the above mentioned reasons, the order under revisions is set-aside. I.A.Nos.50, 51 and 52 of 2014 are allowed. In the event the petitioners further examine PW-1 and adduce evidence of the licensed surveyor, the respondents shall be given opportunity to cross-examine them. The Civil Revision Petitions are accordingly allowed.
As a sequel to the disposal of the Civil Revision Petitions, CRPMP Nos.2191, 3242 and 3330 of 2014 in CRP No.1084 of 2014 are disposed of as infructuous.
Justice C.V. Nagarjuna Reddy Date : 4-9-2014 AM