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2012 DIGILAW 45 (AP)

Maloth Veeru @ Heeralal v. Guguloth Mangi w/o. Balu

2012-01-19

C.V.NAGARJUNA REDDY

body2012
Judgment : 1. The petitioners, who are the defendants in O.S.No.108/2009 filed by the respondent, filed this Civil Revision Petition feeling aggrieved by the order dated 23-12-2009 in I.A.No.146/2009 in O.S.No.108/2009 on the file of the learned Sub-Divisional Magistrate (Mobile Court), at Bhadrachalam (for short “the lower Court”). 2. The petitioners and the respondent have competing claims with respect to Ac.0-26 guntas of land in Chunchupalli village, Kothagudem Mandal, Khammam District (for short “the suit property”). While it is the case of the petitioners that they have become the lawful owners of the suit property having purchased the same under registered sale deed dated 19-8-2009 executed by its lawful owner, the respondent pleaded that it is her self-acquired property and that she is in possession of the same. In support of the plea of the respondent, she has filed pahanies from the years 1999-2000 upto the year 2008-2009. The petitioners have also filed pahani for the year 2008-2009. The lower Court has called for report dated 15-12-2009 from the Tahsildar and has placed reliance on the same in addition to placing reliance on the pahanies submitted by the respondent in coming to the conclusion that the respondent is in possession of the suit property. Even though it is the case of the petitioners before this Court that the lower Court has failed to consider the pahani for the year 2009-2010, unfortunately as no documents have been marked on either side by the lower Court, it is not possible to accept this plea of the petitioners. 3. Be that as it may, from a perusal of the order under revision, I am of the opinion that the lower Court has committed a fundamental error in calling for the report from the Tahsildar and placing reliance on the same. The lower Court is discharging the functions of a Civil Court in the Agency Areas. Placing reliance on a report without summoning its author and examining him is something alien to the procedure before a Civil Court. If the lower Court felt the necessity of eliciting the opinion of the Tahsildar regarding physical possession of the suit property, the appropriate course for it would have been to summon the Tahsildar and examine him as a Court witness. Such a procedure would have ensured that opportunity is given to both the parties to cross-examine such witness. If the lower Court felt the necessity of eliciting the opinion of the Tahsildar regarding physical possession of the suit property, the appropriate course for it would have been to summon the Tahsildar and examine him as a Court witness. Such a procedure would have ensured that opportunity is given to both the parties to cross-examine such witness. By calling for a report from the Tahsildar and placing reliance thereon without giving an opportunity to the petitioner to cross-examine the Tahsildar, the lower Court has committed a serious jurisdictional error. It has also committed another serious error in rendering a prima facie opinion that No.3 pahani extract produced by the petitioners for the year 2008-2009 is a created one. No reasons whatsoever have been assigned by the lower Court in giving such a prima facie finding. The said finding, therefore, is wholly unsustainable. 4. The facts noted above would show that both the parties have filed pahanies for the year 2008-2009. Unless their authenticity is verified during the trial of the suit, it is not possible for the lower Court to render a finding, prima facie or otherwise, with respect thereto. As each party is claiming that he/she is in physical possession of the suit property, it is appropriate that they maintain status quo as on today with respect the same. This shall necessarily mean that whoever is in physical possession of the suit property shall be allowed to continue in possession till disposal of the suit. The lower Court is directed to dispose of the suit within a period of three months from the date of receipt of this order. 5. Subject to the above directions, the Civil Revision Petition is disposed of. 6. As a sequel, CRP.M.P.No.409/2010 is disposed of as infructuous.