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2023 DIGILAW 1345 (AP)

M. Chinna Fakruddin v. V. V. Viplava Kishore

2023-09-23

K.MANMADHA RAO

body2023
JUDGMENT : (K. Manmadha Rao, J.) The Appellant herein is the petitioner/ claimant before the Court below filed the present Civil Miscellaneous Appeal before this Court. 2. Aggrieved by the order dated 10.12.2019 in E.A.No.24 of 2016 in E.P.No.85 of 2015 in O.S.No.103 of 2014 on the file of the Court of I Additional District Judge, Ananthapuramu, (in short “the court below’), which is filed under Order 21, rule 97 r/w Section 151 of CPC against the respondent/ D.Hr and J.Drs 1 and 2 to set aside the E.P proceedings in respect of petition schedule property, which is part of E.P schedule property. 3. The appellant is the claimant; 1st respondent is the plaintiff/ D.Hr; respondents 2 and 3 are the defendants/ J.Drs 1 and 2 before the court below. 4. Initially the plaintiff filed the suit for declaration of title and possession of plaint schedule property and also direct the defendants for removal of the structures made in the portions shown as ABEF & JGCK and in case of their failure the same be order through court of law. The said suit was decreed on 18.02.2015. The plaintiff also filed E.P.No.85 of 2015 to order for demolition of the structures in the schedule mentioned property and for delivery of the same to the plaintiff/ D.Hr. In the said E.P the appellant herein who is claimant has filed E.A.No.24 of 2016 alleging that he is the absolute owner of the part of E.P schedule property measuring East-west 17 ft., North-South: 17 ft., in the E.P schedule property, which was gifted by his father, brothers and sisters under a Registered Gift Deed dated 26.05.2001, since then he has been in possession enjoyment of the same by constructing a thatched shed and living therein with bearing house No.27/311. The appellant has sold the same to Smt. D. Parveen and D. Mahammad under a Registered Sale Deed dated 20.07.2005, who in turn sold the same to one U. Beebi under a registered sale deed dated 11.08.2010, who is 1st J.Dr in the E.P. Again the appellant purchased the said property from Smt. Beebi under a registered sale deed dated 02.03.2015. Surprisingly the appellant came to know that there was a court order to vacate the premises to give court Amin, which he do not know about the proceedings. Surprisingly the appellant came to know that there was a court order to vacate the premises to give court Amin, which he do not know about the proceedings. The respondents are colluded together to nab the property by playing fraud and obtained exparte decree in O.S.No.103 of 2014. The appellant came to know that the D.Hr purchased the E.P schedule property from one Smt. Hemalatha on 17.05.2014 is only a nominal sale deed and who is not the owner of the E.P schedule property and she never in possession and enjoyment of the same. Therefore, E.A.No.24 of 2016 to set aside the E.P proceedings in respect of the petition schedule property, which is a part of E.P schedule property. The court below dismissed the said petition, holding that the appellant/ petitioner failed to establish his title to the petition schedule property. Therefore, the appellant is not entitled to claim any right over the E.P schedule property situated in Plot No.222, even the appellant is in possession of the said property by showing wrong plot number. Assailing the impugned order, the present C.M.A came to be filed. 5. Heard Sri S.Krishna Reddy, learned counsel for the appellant and none represented for the respondent, though not was served. 6. During hearing learned counsel for the appellant would contend that the boundary shown in the E.P schedule as Plot No.218 itself indicates that the property shown in the E.A.No.24 of 2016 is part and parcel of the E.P schedule property, but the same is not considered by the court below. It is further contended that the court below should have seen that the 1st respondent/ D.Hr in collusion with the respondents 2 and 3 i.e J.Drs obtained an exparte decree in O.S.No.103 of 2014 and also an exparte order in E.P.No.85 of 2015 in order to deprive the legitimate right of the appellant over the E.P schedule property as well as the property shown in the schedule of E.A.No.24 of 2016. It is further contended that the very report of the Amin dated 20.04.2015 would show that there are houses existing in the E.P schedule property, which have not been shown by the D.Hrs and the court below on that ground itself ought to have dismissed the E.P. Therefore the order of the court below is mere surmises and not tenable. It is further contended that the very report of the Amin dated 20.04.2015 would show that there are houses existing in the E.P schedule property, which have not been shown by the D.Hrs and the court below on that ground itself ought to have dismissed the E.P. Therefore the order of the court below is mere surmises and not tenable. As such, ordering dismissal of the petition is unsustainable as per law or on facts. Therefore, requested to allow the C.M.A. 7. Perused the record. 8. There is some force in the argument of learned counsel for the appellant that the appellant/ claimant is having right over some extent of the E.P schedule property and as such he filed a petition seeking to set aside order passed in the E.P, but the court below failed to consider the same is the contention of the appellant. 9. The evidence of PW-1 would show that the appellant is not the owner of the property covered by the sale deeds and gift deeds relied by him, which relates to Plot No. 218, but not 222 and that the appellant is nothing to do with the E.P schedule property. 10. As could be seen from the impuged order, it was held that the appellant/ petitioner claiming petition schedule property as if he purchased it from the 2nd respondent, but the reasons best known to him as he was not choose to examine his vendor, the 2nd respondent therein to establish his title to the petition schedule property, though, the 1st respondent therein denied the title of the appellant’s vendor, who purposefully not contested in the suit as well as in the execution proceedings. 11. However, the evidence of vendor of the document, which relied upon by the appellant is very much essential to prove the ownership in respect of the E.P schedule property as claimed by the appellant. When there is a title dispute between the parties, it has to be taken into consideration while passing orders to clear the cloud over the E.P schedule property, or else any amount of prejudice will be caused. Therefore, this Court warrants interference against the impugned order of the court below as there is impropriety or irregularity in the order. Therefore, the C.M.A is deserves to be allowed. 12. Therefore, this Court warrants interference against the impugned order of the court below as there is impropriety or irregularity in the order. Therefore, the C.M.A is deserves to be allowed. 12. Under the aforesaid circumstances, the impunged order dated 10.12.2019 is hereby set aside and remanding the matter to the court below for fresh disposal with a direction to record the evidence of the vendor of the subject document relied by the appellant and pass appropriate orders as expeditiously as possible, preferably within a period of two (02) months from the date of receipt of a copy of this order. 13. With the above direction, the Civil Miscellaneous Appeal is allowed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.