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2005 DIGILAW 830 (AP)

Thuluma Mallaiah v. District Collector, Nalgonda

2005-09-01

C.Y.SOMAYAJULU

body2005
( 1 ) PETITIONERS, who are claiming to be the owners of land in S. Nos. 779 and 780 of panagal village, Nalgonda District, filed this petition seeking a direction to the respondents to pay compensation for the loss sustained by them due to inundation of their land, as a consequence to the construction of a masonry structure for storage of water, by the respondents. ( 2 ) FROM the averments in the affidavit filed in support of the petition it is seen that the petitioners, after issuing a notice claiming compensation and for removal of masonry structure constructed by the respondents, had filed O. S. No. 2099 of 1988 on the file of the Court of the District Munsif, Nalgonda, and that the same was dismissed, and that they preferred an appeal in A. S. No. 48 of 1993 to the District Court against the decree of dismissal of their suit and that the appeal was allowed with a direction to the respondents to reduce the height of the bund and pay suitable compensation to them, for the loss sustained by them due to the raising of the height of the bund, and that respondents, questioning the decree in the first appeal, filed a second appeal, with a petition to condone the delay and obtained orders of stay of operation of the decree in appeal and so they are obliged to file the writ petition. ( 3 ) ON behalf of the respondents, second respondent filed his counter affidavit inter alia contending that the masonry structure was constructed only upto the height of the existing old earthen bund for the benefit of the tail end Ayacutdars and that petitioners did not suffer any loss and are raising crops as usual in their lands and so they are not entitled to any relief. ( 4 ) THE averments in the affidavit filed in support of this petition show that petitioners filed a suit for the same relief and obtained a decree in the appeal passed by the District court setting aside the decree of dismissal of the suit by the trial court. In the second appeal filed by the respondents with a delay condonation petition in C. M. P. No. 13016 of 1995 a learned judge ordered condonation of the delay on condition of the respondents herein i. e. , petitioners therein paying rs. In the second appeal filed by the respondents with a delay condonation petition in C. M. P. No. 13016 of 1995 a learned judge ordered condonation of the delay on condition of the respondents herein i. e. , petitioners therein paying rs. 250/- within four weeks from that day i. e. , 06-07-1998 and further ordered that in default, the petition would stand dismissed. Since respondents i. e. , the petitioners therein failed to comply with the conditional order, the petition stood dismissed. Therefore, it is clear that the decree of the first appellate court became final and so there is no impediment for the petitioners to execute the decree passed in their favour. Since petitioners cannot have two reliefs for the same cause of action from two different forums, they cannot be granted any relief in this writ petition, more so because petitioners seem to have filed this petition feeling aggrieved by the order of stay of the decree passed by the first appellate court obtained by the respondents in c. M. P. No. 13016 of 1995. Since this court in a proceeding under Article 226 of the consitution cannot set at naught an order passed by this court while exercising its jurisdiction in a civil proceeding and since the remedy of the petitioners, if they feltaggrieved by the order of stay granted in C. M. P. No. 13016 of 1995, was to file a petition to vacate stay, but not by way of filing of a writ petition invoking the jurisdiction of this court under Article 226 of the Constitution, the petition is liable to be dismissed. ( 5 ) FOR the above reasons, the writ petition is dismissed. No costs.