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2013 DIGILAW 689 (AP)

Pulime Swamy Naidu v. Denduluri Manikyambha

2013-08-23

R.SUBHASH REDDY

body2013
ORDER The judgment debtors in O.S.No.112 of 1997 on the file of the Principal Junior Civil Judge, Alamuru, filed this Civil Revision Petition under Section 115 CPC, aggrieved of the order dated 10.04.2013 passed in E.A.No.360 of 2012 in E.P.No.79 of 2010, in the said suit. 2. The respondents herein filed the aforesaid suit for declaration of title and recovery of possession of the suit schedule property – Ac.0.90 cents covered by R.S.No.503/6 of Alamuru village, Kapileswarapuram Mandal, East Godavari District. In the plaint schedule, the said property was described by giving the boundaries on all the four sides. The suit was decreed in favour of the respondents by judgment and decree dated 09.11.2006. The same was confirmed in first appeal vide A.S.No.3 of 2007 on the file of the Senior Civil Judge, Ramachandrapuram and further confirmed by this Court in view of dismissal of S.A.No.646 of 2010, filed by the petitioners herein, by judgment dated 30.07.2010. The respondents, in execution of the decree, filed E.P.No.79 of 2010 for delivery of the E.P. schedule property. Delivery warrant was issued and when Court Field Assistant visited the E.P. schedule property, there was an objection by a person claiming tenancy over the said property. Thereafter, the said person filed A.T.C. before the Tenancy Court and obtained interim orders, but the same were vacated at the instance of the respondents herein. When the Court Field Assistant could not execute the decree as he was unable to localize and identify the E.P. schedule property and returned the warrant, the trial Court passed orders permitting the Court Field Assistant to take aid of the Mandal Surveyor for execution of the warrant. Again, the Court Field Assistant visited the E.P. schedule property on 07.04.2012 along with the Mandal Surveyor, who identified the E.P. schedule property with boundaries, but at that stage there was a protest on the ground that there is a cultivating tenant thereon. Even at that stage, in his report, the Court Field Assistant has endorsed that there was brick kiln in the E.P. schedule property. 3. There was further resistance for execution of the decree on the ground that brick kiln is located in R.S.No.503/7, but not R.S.No.503/6. Even at that stage, in his report, the Court Field Assistant has endorsed that there was brick kiln in the E.P. schedule property. 3. There was further resistance for execution of the decree on the ground that brick kiln is located in R.S.No.503/7, but not R.S.No.503/6. On the application filed by the respondents-decree holders, the impugned order is passed directing the Court Field Assistant to remove all the obstructions including the brick kiln in the E.P. schedule property with the aid of Police and deliver the property to the respondents-decree holders. Aggrieved of the same, this Civil Revision Petition is filed. 4. Heard Sri P. Satya Prasad, learned senior counsel for the petitioners and Sri J. Sreenivasa Rao, learned counsel for the respondents. 5. It is submitted by the learned senior counsel for the petitioners that the brick kiln is located in R.S.No.503/7, but not in the E.P. schedule property covered by R.S.No.503/6. As there is no decree in respect of the property covered by R.S.No.503/7, the trial Court committed error in directing the Field Assistant to remove the brick kiln and other material in R.S.No.503/7 with the aid of Police. 6. On the other hand, it is submitted by the learned counsel for the respondents that when proceedings were pending, brick kiln was started in the same E.P. schedule property, which is also evident from the observations made by this Court in S.A.No.646 of 2010. 7. While dismissing S.A.No.646 of 2010, the following observations were made by this Court: “Admittedly, in the present case, the defendants set up an independent title in the suit schedule property under the Will deed said to have been executed by the father-in-law of the first defendant, in whose favour 99 years lease said to have been granted by the husband of the first plaintiff, which has not been established by the defendants. Further, when the land was leased out for growing gross as per the evidence adduced by the parties and later it was converted into brick kiln, the provisions of the Tenancy Act are not applicable. When there is no valid lease established by the defendants in their favour and the tenancy rights accrued in their favour on the death of the father-in-law of the first defendant, the defendants cannot say that they are the tenants of the suit schedule property on mere assertion.” 8. When there is no valid lease established by the defendants in their favour and the tenancy rights accrued in their favour on the death of the father-in-law of the first defendant, the defendants cannot say that they are the tenants of the suit schedule property on mere assertion.” 8. Even on earlier occasion when warrant was returned, the Court Field Assistant made an endorsement that there is a brick kiln in the E.P. schedule property. It is to be noticed that when the Court Field Assistant was unable to localize and identify the property, the trial Court issued directions to execute the warrant with the aid of the Mandal Surveyor, who identified the E.P. schedule property with boundaries. Meanwhile, a tenancy plea was set up by a third party who could successfully resist execution of the decree and even thereafter he approached the Tenancy Court under the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 and obtained interim orders, which were vacated subsequently at the instance of the respondents. It appears, though a decree was obtained as early as on 09.11.2006 by the respondents-plaintiffs, the same is sought to be resisted by the petitioners by raising one objection or the other. The observations made by this Court in the Second Appeal referred above and the endorsement of the Court Field Assistant while returning the warrant make it amply clear that brick kiln is developed by the petitioners-defendants only in the land covered by the E.P. schedule property in R.S.No.503/6, but not in the property covered by R.S.No.503/7 as pleaded by them. 9. For the aforesaid reasons, I do not find any ground to interfere with the impugned order. 10. Civil Revision Petition is totally devoid of merits and is accordingly dismissed. As a sequel, CRP MP No.2691 of 2013 stands closed. No order as to costs.