The Hon’ble Sri Justice C.V.Nagarjuna Reddy Civil Revision Petition No.874 of 2014
Dated 25.04.2014
Between:
Veeraboina Venkayamma …Petitioner And Matte Anasuyamma (died) and 15 others …Respondents Counsel for the Petitioner: Mr.Siva Sankara Rao Borra Counsel for the respondents: ---
The Court made the following:
Order:
This Civil Revision Petition is filed against Order, dated 20-02-2014, in IA.No.174 of 2013 in IA.No.728 of 2006 in OS.No.101 of 1979 on the file of the Court of the learned Principal Junior Civil Judge, Ongole, Prakasam District.
I have heard Mr.Siva Sankara Rao Borra, learned Counsel for the petitioner, and perused the record.
One Ravulapalli Gangaiah and Goli Venkata Subbamma appeared to have filed OS.No.101 of 1979 for partition of the suit schedule properties against one Matte Anasuyamma and Monapati Poluraju for partition of the suit schedule property. As Matte Anasuyamma sold the said property to Monapati Poluraju, the latter was added as defendant No.2 in the suit. The suit was decreed on 08-12-1987 granting two shares out of three to the plaintiffs and Goli Venkata Subbamma. As Goli Venkata Subbamma died issueless, respondent Nos.14 to 16, who are the legal heirs of late Ravulapalli Gangaiah, filed IA.No.185 of 1997 claiming her share. In that IA, respondent No.12- Goli Subba Rao, filed IA.No.1082 of 1997 claiming the share of Goli Venkata Subbamma on the strength of a will executed by her in his favour. On contest, IA.No.1082 of 1997 was allowed on 22-11-1997. IA.No.185 of 1997 was dismissed for default on 23-12-1997. Thereafter, respondent Nos.14 to 16 filed IA.No.728 of 2006 under Order XX Rule 18 of the Code of Civil Procedure, 1908 (CPC) for partition of the suit schedule property into three equal shares and allotment of one such share to them. The said application was allowed and a final decree was passed in favour of respondent Nos.14 to 16 on28-09- 2011. As Monapati Poluraju, who purchased the property through Matte Anasuyamma, has died, his wife and two sons were added as respondent Nos.3 to 5 in the final decree proceedings. The petitioner herein, who is the daughter of late Monapati Poluraju, filed IA.No.174 of 2013 under Order XXI Rule 99 CPC to hold an enquiry into her rights over the suit schedule property and to grant an order of injunction restraining respondent Nos.14 to 16 from dispossessing her from the said property. The said Application was contested by respondent Nos.14 to 16. By Order, dated 20-02-2014, the learned Principal Junior Civil Judge, Ongole, dismissed the same.
The petitioner has pleaded before the lower Court that though she had a share in the joint family property of her father- late Monapati Poluraju, she was not impleaded along with his mother and brothers in the final decree proceedings and that as she has a right over the suit schedule property, the decree cannot be executed against her. The Court below has concluded that even according to the averments of the petitioner, she was in possession of the suit schedule property till her marriage, from which it is implied that she was not in possession of the suit schedule property as on the date of the filing of IA.No.174 of 2013 and that therefore, Order XXI Rule 99 CPC will not apply.
An application under Order XXI Rule 99 CPC can be maintained only when a person other than the judgment debtor, who is in possession of the suit schedule property, is dispossessed or sought to be dispossessed therefrom. No evidence has been placed by the petitioner before the lower Court to show that as on the date of filing of the aforesaid IA, she was in possession of the suit schedule property. In the face of the petitioner’s own averments that she was in possession of the suit schedule property till her marriage only, the lower Court has rightly come to the conclusion that the petitioner cannot maintain the application under Order XXI Rule 99 CPC.
For the foregoing reasons, the Civil Revision Petition is dismissed.
As a sequel, CRPMP.No.1210 of 2014, filed by the petitioner for interim relief, is dismissed as infructuous.
(C.V. Nagarjuna Reddy, J) 25th April, 2014
LUR