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2005 DIGILAW 455 (AP)

Tummu Rajapu Reddy v. P. Koteswaramma

2005-06-06

L.NARASIMHA REDDY

body2005
L. NARASIMHA REDDY, J. ( 1 ) THE first defendant in O. S. No. 23 of 2004 in the Court of Junior Civil Judge, Narsapur, medak District is the petitioner in this Civil revision Petition. Respondents 1 to 4 herein filed the suit with a prayer to set aside the preliminary decree passed in O. S. No. 77 of 2000 on the file of the same Court as well as the final decree passed therein. They also filed I. A. No. 84 of 2004 under Order 39 rule1 C. P. C. against the petitioner and eight others. Through its order dated 09-11 -2004, the trial Court granted temporary injunction. The petitioner assailed the same by filing c. M. A. No. 7 of 2004 in the Court of Senior civil Judge, Medak. The C. M. A. was dismissed on 15-02-2005. Hence, this civil revision petition. ( 2 ) THE relevant facts are as under: the petitioner, respondents 5 to 7 and one Mr. Thummu Chalamareddy are the sons of Thummu Marrireddy of Reddypalem, hamlet of Chintalacheruvu Village, Hathnoora mandal, Medak District. Thummu Marrireddy owned an extent of about Ac. 83. 37 guntas in various Survey Numbers of that village. After the death of Marrireddy, his sons sold an extent of Ac. 12. 00 of the joint property. Thereafter through separate sale deeds, the four brothers, except the petitioner herein, sold their shares in favour of respondents 8 to 12 in the year 1987. The petitioner retained his share of property. However, he figured as wndor in all the sale deeds executed by his brothers, with a view to endorse the transactions. Respondents 8 to 12, in turn, are said to have sold an extent of Ac. 44. 02 guntas in favour of respondents 1 to 4 through various sale deeds in the years 1993, 1994 and 1995. ( 3 ) THE petitioner filed O. S. No. 77 of 2000 in the Court of Junior Civil Judge, Narsapur; medak District against respondents 5 to 12 for the relief of partition and separate possession. An exparte preliminary decree was passed therein and subsequently, a final decree was passed on 4-12-2003 in I. A. No. 426 of 2001 demarcating an extent of ac. 18. 29 guntas. An exparte preliminary decree was passed therein and subsequently, a final decree was passed on 4-12-2003 in I. A. No. 426 of 2001 demarcating an extent of ac. 18. 29 guntas. ( 4 ) RESPONDENTS 1 to 4 filed the present suit, being O. S. No. 23 of 2004 for setting aside the preliminary and final decrees passed in O. S. No. 77 of 2000. They pleaded that the suit was filed in collusion with the defendants therein and without impleading them, with a sole object of defeating their rights. They contended that on the strength of the preliminary and final decrees, the petitioner is encroaching into the land purchased by them and prayed fortemporary injunction; by filing I. A. No. 84 of 2004. The application was resisted by the petitioner herein. The trial Court granted temporary injunction and it was affirmed in the C. M. A. ( 5 ) SRI C. R. Pratap Reddy, learned counsel for the petitioner submits that his client retained his share of the property and it was always open to him to seek partition of the joint family properties against his brothers as well as their purchasers. According to the learned counsel, the trial Court could not have ignored the preliminary and final decrees, till they were set aside and that the order of temporary injunction cannot be sustained in law. He further submits that even otherwise, respondents 1 to 4 do not have any right against any land other than the one purchased by them from respondents 8 to 12. ( 6 ) SRI Mirza Nisar Ahmed Baig, learned counsel for the contesting respondents 1 to 4, on the other hand, submits that the very filing of a suit for partition by the petitioner was impermissible inasmuch as the property retained by the petitioner was clearly indicated and demarcated, when his brothers sold their share of the land infavourof respondents 8 to 12. He contends that though respondents 1 to 4 purchased the land from respondents 8 to 12 way back in the year 1995, and their names were entered in the revenue records, the petitioner did not choose to implead them in the suit for partition. He contends that though respondents 1 to 4 purchased the land from respondents 8 to 12 way back in the year 1995, and their names were entered in the revenue records, the petitioner did not choose to implead them in the suit for partition. Another contention advanced by him is that the purport of the preliminary decree would be to define the shares and indicate the property available for partition, whereas the one passed in O. S. No. 77 of 2000 was for a definite extent of ac. 18. 29 guntas and on the face of it, it cannot be sustained in law. He further contends that the land purchased by respondents 8 to 12 was clearly demarcated with the consent of the petitioner and the question of the petitioner seeking partition of such land or allocation of any portion thereof towards his share does not arise. ( 7 ) AS indicated in the preceding paragraphs, out of the five sons of Thummu marrireddy, four have sold their share of property in favour of respondents 8 to 12 in the year 1987. The petitioner who retained his share, figured as party to the sale deed with a view to endorse the transactions. Totally different things would have ensued, if it were to be a case where the brothers of the petitioner had alienated their undivided share in the joint property. In such an event, the purchaser could have acquired, only a right to seek partition, and not an absolute and independent right over any definite extent of the property. In such an event, the rights of the parties to the sale would have been governed by Section 44 of the Transfer of property Act. A perusal of the sale deeds marbed as Exs. A-1 to A-11 discloses that the property sold in favour of respondents 8 to 12 on the one hand and the one retaihed by the petitioner were demarcated. Therefore, it is debatable whether a suit for partition can be feed in respect of the lands covered by exs. A-1 to A-11. That however is a matter which needs to be dealt with, during the trial of the suit. ( 8 ) HAVING figured as a party in Exs. A-1 to a-11, the petitioner cannot take any steps contrary to the same. It is not in dispute that respondents 1 to 4 purchased an extent of ac. 44. A-1 to A-11. That however is a matter which needs to be dealt with, during the trial of the suit. ( 8 ) HAVING figured as a party in Exs. A-1 to a-11, the petitioner cannot take any steps contrary to the same. It is not in dispute that respondents 1 to 4 purchased an extent of ac. 44. 02 guntas through different sale deeds executed between 24-07-1993 and 28-03-1995, marked as Exs. A-12 to A-22. If this extent of Ac. 44. 02 guntas forms part of the land covered by the sale deeds-Exs. A-1 to A-11, the petitioner cannot claim any right over it. Conversely, respondents 1 to 4 cannot claim any right over any land, which does not form part of Exs. A-1 to A-11. ( 9 ) THE validity or otherwise of the preliminary and final decrees passed in o. S. No. 77 of 2000 is a matter to be dealt with at the time of final hearing of the suit. Till they are set aside in accordance with law, they cannot be ignored. At the same time, under the guise of such decrees, the petitioner cannot be permitted to act contrary to the recitals contained in Exs. A-1 to A-11, in which he figured as an executant. The controversy, for the present, boils down, to the one of identity of the suit schedule lands. No doubt, the trial Court appointed a commissioner to undertake identification of the land. That, however, was in the context of the final decree passed in O. S. No. 77 of 2000. No effort was made to see whether there is any overlapping of claims, vis-a-vis the land covered by Exs. A-1 to A-1. It is only when a finding is recorded that the petitioner is found interfering with the land covered by exs. A-1 to A-11, which corresponds, by and large, to the land covered by Exs. A-12 to a-22, the feasibility of granting permanent injunction can be considered. The Courts below did not undertake such an exercise. ( 10 ) FOR the foregoing reasons, the orders passed in I. A. No. 84 of 2004 in O. S. No. 23 of 2004 on the file of the Junior Civil Judge, narsapur, Medak District and in C. M. A. No. 7 of 2004 on the file of the Senior Civil Judge, medak are set aside. ( 10 ) FOR the foregoing reasons, the orders passed in I. A. No. 84 of 2004 in O. S. No. 23 of 2004 on the file of the Junior Civil Judge, narsapur, Medak District and in C. M. A. No. 7 of 2004 on the file of the Senior Civil Judge, medak are set aside. The trial Court shall appoint a Surveyor-Commissioner by choosing a senior officer from the department of Survey and Land Records as well as an advocate-Commissionerto verify and submit a report. (a) Demarcating the land covered by the documents-Exs. A-1 to A-11 on the one hand and Exs. A-12 to A-22 on the other. The fact as to whether both are one and the same or if there is any variation shall be indicated in the report as well as on the map. (b) Indicating whether the land said to be in possession of the petitioner on the basis of a final decree passed in o. S. No. 77 of 2000 forms part of the land covered by the sale deeds- exs. A-1 to A-11 and if so, the portion thereof with clear demarcation. ( 11 ) IN case, the petitioner is found claiming any portion of the land covered by Exs. A-1 to a-11, respondents 1 to 4 shall be entitled to be granted temporary injunction to that extent. It is obvious that if no such overlapping is noticed, there does not exist any necessity to grant any temporary injunction. ( 12 ) THE Civil Revision Petition is allowed with the above directions. There shall be no order as to costs.