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2025 DIGILAW 999 (TS)

Vision Constructions v. Vanam Kamalamma

2025-09-10

RENUKA YARA

body2025
ORDER : 1. This Civil Revision Petition is directed against the impugned order passed by the learned IV Addl. Junior Civil Judge at Khammam in I.A.No.9 of 2023 in O.S.No.660 of 2022, dated 24.08.2023, wherein, the Interlocutory Application filed under Order 7, Rule 11 of CPC to reject the plaint has been dismissed. 2. Heard Sri M. Srinivas Rao Bodduluri, learned counsel for the revision petitioners/defendant Nos.1 to 4 and Sri M. Ram Mohan, learned counsel for the respondent No.1/plaintiff. 3. The brief facts of the case are that respondent No.1/plaintiff filed the suit for mandatory injunction to direct the revision petitioners and respondent No.2 to demolish the illegal construction raised by them in the suit schedule property and to restrain them not to raise further illegal constructions in the suit schedule property. After filing of the suit, the revision petitioners filed an Interlocutory Application vide I.A.No.9 of 2023 under Order 7, Rule 11 of CPC alleging that there is no cause of action for filing the suit and therefore to reject the plaint. A reference is made to the pleadings of the plaint wherein it is alleged that the western boundary of the suit schedule property is an Electric Sub-station which was previously acquired for N.S.Canal. It is alleged that the revision petitioners herein obtained building construction permission vide File No.004552/ DP/DTCP/3018/0074/20001, dated 02.03.2002. Further, it is alleged that the revision petitioners taking advantage of old age of respondent No.1 and her residence at Hyderabad tried to encroach the land of respondent No.1 and started construction in Sy.No.80 of Pakabanda village of respondent No.1 illegally. The cause of action paragraph shows that on 03.04.2023, when the petitioners herein and respondent No.2 tried to raise illegal construction, the respondent No.1 got issued a legal notice to the Commissioner, Municipal Corporation, Khammam. Petitioner Nos.2 and 3 are in joint possession of 1,850 sq.yds., obtained building permission for construction of apartment. Certain part of the land was acquired under award No.4/77 in L.A. Case No.A1/873/77, dated 22.10.1977. There is a person by name Yakkala Lakshminarayana, who is in absolute exclusive possession of excess part of land in Sy.No.80 against one and all since 1977 and prior to 1977. Said possession is followed by Mulagundla Ragahvaiah and petitioner Nos.2 and 3 over N.S. Canal acquired land and relevant documents are filed. There is a person by name Yakkala Lakshminarayana, who is in absolute exclusive possession of excess part of land in Sy.No.80 against one and all since 1977 and prior to 1977. Said possession is followed by Mulagundla Ragahvaiah and petitioner Nos.2 and 3 over N.S. Canal acquired land and relevant documents are filed. Since others are in occupation of the land, respondent No.1 cannot claim any right over the suit schedule property. The suit is barred by limitation under Article 65 of Limitation Act and under Section 113 of Limitation Act. The respondent No.1 and her predecessors are not in possession of the property for more than 40 years. Further, the relief of mandatory injunction is undervalued. In view of the aforementioned fact circumstances, there is no cause of action arose in between 03.04.2022 and 08.04.2022, the suit is frivolous in nature and liable to be rejected under Order 7, Rule 11 of CPC . 4. Respondent No.1 filed counter in I.A alleging that cause of action is revealed in the plaint and the matter of under valuation can be decided by framing an issue and the issue of limitation is a question of fact and law which can be decided only after trial and therefore, sought dismissal of the I.A. 5. Upon hearing both the sides, the learned Trial Court dismissed the I.A vide impugned order leading to filing of the present Civil Revision Petition. 6. In grounds of revision, it is pleaded that a doubt is raised over respondent No.1’s title and when the respondent No.1 is not in possession of the subject property, a suit for declaration of title and recovery of possession has to be filed. The complicated question of title and possession can be decided in a comprehensive suit for declaration of title but not in a suit for injunction. It is further pleaded that a suit for mandatory injunction is filed without producing an iota of evidence with respect to title. In Sy.No.80, there is total extent of Ac.9.08 Gts. out of which Ac.1.14 Gts was sold to Pentyala Sunitha, Ac.1.06½ Gts. was acquired by Government and the remaining land was converted into plots by respondent No.1’s husband and there are no details of how many plots were sold and how many plots remained with respondent No.1’s husband. In Sy.No.80, there is total extent of Ac.9.08 Gts. out of which Ac.1.14 Gts was sold to Pentyala Sunitha, Ac.1.06½ Gts. was acquired by Government and the remaining land was converted into plots by respondent No.1’s husband and there are no details of how many plots were sold and how many plots remained with respondent No.1’s husband. It is pleaded that respondent No.1 is claiming to be in possession but unable to physically identify the suit schedule property. On one hand, respondent No.1 is claiming ownership and possession over Ac.1.02 Gts in Sy.No.80 and on the other hand claiming an open house site admeasuring 1500 sq.yds. in the same survey number. 7. In grounds of revision, it is further pleaded that the learned Trial Court has not considered the factum that respondent No.1 did not get her name mutated after the death of her husband. Further, the learned Trial Court did not consider the purchase of land to an extent of 1500 sq.yds., in Sy.No.84 by petitioner Nos.2 and 3 under a registered sale deed in the year 2004. The petitioner No.4 purchased 482 sq.yds., in Sy.Nos.83 and 84 of Pakabanda, Khammam under a registered sale deed in the year 1991 through GPA. The building construction approval was obtained for 1949.62 sq.yds. of land in Sy.Nos.83 and 84 on 02.03.2022. There was blasting activity in the year 2005 and the land was levelled in the year 2019 but no objection raised by respondent No.1. Loan was granted for land to an extent of 1850 sq.yds. Earlier, the respondent No.1 filed a suit for perpetual injunction vide O.S.No.33 of 2016 on the file of the Senior Civil Judge, Khammam against the District Collector and others along with I.A.No.145 of 2016 seeking temporary injunction and the said I.A was dismissed. Aggrieved by the same, the respondent No.1 preferred CMA No.2 of 2017 on the file of the Principal District Judge at Khammam. There was a Commissioner report dated 12.06.2018 in the said CMA and the respondent No.1 having raised objections therein is now claiming title through the same report. The said CMA was dismissed on 27.02.2019 with a finding to the effect that respondent No.1 does not have prima facie case but trying to make out a case to encroach into the land through Court process. It is also held that respondent No.1 approached the Court with unclean hands. The said CMA was dismissed on 27.02.2019 with a finding to the effect that respondent No.1 does not have prima facie case but trying to make out a case to encroach into the land through Court process. It is also held that respondent No.1 approached the Court with unclean hands. In view of the aforementioned, it is pleaded that the present suit is also filed without any cause of action and therefore, liable to be rejected. 8. During arguments in revision, the learned counsel for the revision petitioners vehemently emphasized that a finding is given by a competent Civil Court in I.A.No.145 of 2016 in O.S.No.33 of 2016 that respondent No.1 is not in possession of her property, that she failed to make out a prima facie case, that she approached the Court with unclean hands and therefore, dismissed the Interlocutory Application filed seeking temporary injunction. The appeal filed challenging the order of dismissal vide CMA No.2 of 2017 was also dismissed confirming the finding of the Trial Court holding that respondent No.1 herein does not have possession and trying to encroach the property through Court process and therefore, the current suit is frivolous one filed to harass the petitioners and therefore, sought its rejection. 9. In response, the learned counsel for the respondent No.1 to show the existence of cause of action referred to cause of action paragraph in the plaint wherein it is stated that cause of action arose when the petitioners herein started illegal construction and the respondent No.1 gave legal notice to the Commissioner requesting to stop the illegal construction. Said cause of action is a continuing cause of action. Further, it is argued that the pleadings of the plaint disclose cause of action and therefore, there are no grounds to reject the plaint for non-disclosure of cause of action. Coming to the aspect of under valuation of the suit, it is argued that an issue can always be framed about the correctness of suit valuation and in case, there is any amount to be paid, the same can be done after a judgment and decree is passed in that regard. Lastly, with respect to issue of limitation, it is argued that the issue of limitation is an issue of fact and law which can be decided only after full-fledged trial. As such, sought dismissal of the Civil Revision petition. 10. Lastly, with respect to issue of limitation, it is argued that the issue of limitation is an issue of fact and law which can be decided only after full-fledged trial. As such, sought dismissal of the Civil Revision petition. 10. A perusal of the plaint discloses existence of a paragraph showing cause of action. Further, the pleadings of the plaint by themselves when considered to be genuine in totality disclose a cause of action which may or may not be genuine and said aspect has to be dealt with only after evidence of both the parties is recorded. Further, a suit cannot be rejected for under valuation as opportunity has to be given for payment of deficit court fee, if any. Further, the issue of limitation is an issue of fact and law and therefore, cannot be taken up at the initial stage to reject the plaint before the evidence is recorded. 11. Lastly, there is a vehement argument about finding given by the Senior Civil Judge, Khammam in I.A.No.145 of 2016 in O.S.No.33 of 2016, wherein, the temporary injunction sought by respondent No.1 herein was denied and the same was confirmed by the Principal District Judge at Khammam vide order dated 27.02.2019 in CMA No.2 of 2017. The dismissal of I.A.No.145 of 2016 in O.S.No.33 of 2016 or dismissal of C.M.A.No.2 of 2017 cannot be ground for rejection of plaint under Order 7, Rule 11 of CPC in the present suit. As such, there are no merits in the Revision Petition and the same is liable to be dismissed. 12. Accordingly, the Civil Revision Petition is dismissed confirming the impugned order passed by the learned IV Addl. Junior Civil Judge at Khammam, in I.A.No.9 of 2023 in O.S.No.660 of 2022, dated 24.08.2023. No costs. As a sequel thereto, miscellaneous petitions, if any, pending in this petition shall stand closed.