Judgment:
THE HONOURABLE Sr.JUSTICE B.CHANDRA KUMAR Civil Revision Petition No.4676 of 2011 11-02-2014 Katta Penchalaswamy and others ...Petitioners/Defendants Mopuru Veera Raghava Reddy...Respondent/Plaintiff Counsel for the Petitioners:Sr.P.
Gangarami Reddy Counsel for the Respondent:Smt.
Y.L.Siva Kalpana Reddy : : ?.Cases Referred: 1.
AIR1974Orissa 173 2.
2008(4) ALT4953.
2005(6) ALD8054.
1998(1) ALT3715.
(2002) 2 SCC6566.
AIR1975SC17677.
2004(3) ALT63SC) 8.
2007(1) ALT5119.
Laws (Mad)-2009-9-18 HON'BLE Sr.JUSTICE B.
CHANDRA KUMAR Civil Revision Petition No.4676 of 2011 Order: This CRP is directed against the judgment and decree dated 22.09.2011 passed in O.S.No.171 of 2006 by the Principal Senior Civil Judge, Nellore, SPSR Nellore District.
The defendants in the said suit are the petitioners herein and the plaintiff in the said suit is the respondent herein.
The parties hereinafter will be referred to as they are arrayed before the lower Court for the sake of convenience.
The case of the plaintiff, in brief, is that one Gollamudi Radha Prathima, W/o Venkateswara Reddy obtained a decree against one Punyakoti Narasimha Rao and his wife Vijaya in O.S.No.242 of 1997 on the file of the Principal Senior Civil Judge, Nellore.
Thereafter the suit schedule property was attached on 20.04.2002 and it was brought for sale in execution proceedings in E.P.No.113 of 2003.
The further case of the plaintiff is that, he participated in the auction held by the Court on 26.07.2005 and was declared as highest bidder for a sum of Rs.3,60,000/- and he obtained sale certificate.
The further case of the plaintiff is that he filed EA No.25 of 2006 in OS No.242 of 1997 for delivery of the schedule property to him and an Amin was deputed to deliver the property, but as the doors were locked, on the application filed by him orders to break open the locks were passed and accordingly, the Amin broke open the locks of the house on 24.02.2006 and delivered the suit schedule property to him and since none of the judgment debtors or their men came forward to receive the movables in the house, the Amin had taken inventory of the same and handed over the same to him under proper bond.
The plaintiff had put his own locks to the premises.
On 28.02.2006, EA No.25 of 2006 was closed recording delivery of property to the plaintiff.
On the same day, the defendants lodged a complaint before the Station House Officer, V Town Police Station, Nellore, alleging that the Mandal Revenue Officer, Nellore had granted house site pattas in their favour and that the plaintiff and others have trespassed into their house plots and the said complaint was registered as a case in Crime No.52 of 2006 for the offences punishable under Sections 447, 427 and 500 IPC read with Section 34 IPC against the plaintiff and otheRs.The further case of the plaintiff is that under the guise of criminal complaint lodged before the police, the fiRs.defendant broke open the locks put up by him and trespassed into the premises illegally and dispossessed him from the suit schedule property.
The further case of the plaintiff is that one Naga Sarojini Devi filed a suit in O.S.No.56 of 2002 against Punyakoti Narasimha Rao and others on the file of the Senior Civil Judge Court, Nellore and in the said suit the fiRs.defendant herein filed an application in I.A.No.664 of 2003, to come on record as party to that suit, and in the said application the fiRs.defendant stated that he purchased the suit schedule property from Punyakoti Narasimha Rao under registered sale deed dated 01.05.2002.
The specific case of the defendants is that in fact no patta was granted in favour of Punyakoti Narasimha Rao, but however he cheated several persons including the defendants contending that he became the owner of Plot bearing No.167 and that the plaintiff in O.S.No.242 of 1997, under a false notion that the said plot belonged to Punyakoti Narasimha Rao, attached the same.
In fact, Punyakoti Narasimha Rao had no title to the said property nor was in possession of the same at any point of time.
It is also his version that since Punyakoti Narasimha Rao had no title to the property the attachment of the said property in OS No.242 of 1997 was illegal and therefore the subsequent sale of the schedule property in Court auction is also hypothetical one.
Their main case is that they are landless poor persons and Plot No.167 was sub-divided into Sy.No.167(a).167(b) and 167(c) in an extent of each 12 1/2 Ankanams and the fiRs.defendant was allotted Plot No.167(b) and the second defendant was allotted Plot No.167(a) and the third defendant was allotted 167(c) and that by virtue of proceedings of the Mandal Revenue Officer dated 05.12.2005, they have become absolute owners with exclusive possession and enjoyment of their respective extents.
It is also their case that on 28.02.2006 the plaintiff made his futile endeavour to trespass into their house plots and they averted the same.
The lower Court framed the main issue as to whether the plaintiff is entitled for delivery of vacant possession of the plaint schedule property and on appreciation of oral and documentary evidence came to the conclusion that the defendants have dispossessed the plaintiff after the plaintiff was put in possession through the process of the Court and therefore they are liable to deliver vacant possession of the plaint schedule property to the plaintiff.
Aggrieved by the same, this CRP has been filed.
Sr.P.
Gangarami Reddy, learned counsel for the petitioners/defendants, submits that Punyakoti Narasimha Rao had no title to the property and therefore attaching the suit schedule property itself is illegal.
His next submission is that when the defendants have disputed the title of the plaintiff, the lower Court ought to have dismissed the suit.
His further submission is that the defendants were never dispossessed and there was no physical delivery of the property on 24.02.2006 and that the plaintiff was never in possession of the suit schedule property at any point of time.
It is also his submission that the plaintiff ought to have proved his prior possession to seek relief under Section 6 of the Specific Relief Act.
It is also his submission that there is no averment by the plaintiff that he was dispossessed on a particular day and it was obligatory on his part to specifically plead and prove that on a particular day he was dispossessed before filing the suit.
His next submission is that the schedule property attached is originally a vacant site and delivery warrant also reveals the same and when the Court Amin had gone to deliver the property and when he had found that there is a shed in the said property the Amin ought to have reported the matter to the Court, but the plaintiff simply filed an application to break open the lock in the lower Court without verifying the fact that the delivery warrant was issued only in respect of vacant site but a shed was existing in the suit schedule property on the date of visit of Amin and therefore ought not to have issued orders to break open the lock.
His main submission is that where any person, other than the judgment debtor or a tenant, is residing in a house, possession of which is to be delivered, the court Amin shall not dispossess the persons in actual possession of the house, but deliver only a symbolic possession and report the matter to the Court.
It is also his submission that Punyakoti Narasimha Rao had no title to the property and that the defendants have been issued house site pattas by the Mandal Revenue Officer and they became the owners of the property and in the above circumstances there is serious dispute with regard to title and that the attachment and subsequent sale are illegal.
It is also his submission that the procedure prescribed under Order 21 Rules 35 and 36 of CPC is not followed and mere symbolic possession cannot be treated as actual possession.
He referred to Order 21 Rules 35, 36, 95 and 96 of CPC.
He has relied on a decision of the Full Bench of Orissa High Court reported in Jayagopal Mundra v.
Gulab Chand Agarwalla1, wherein the procedure for delivery of possession has been discussed.
He has also relied on a decision reported in Daggubati Ranganayakulu (died) per LRs v.
Polini Venkata Subbaiah (per LRs)2, in support of his contention that where there is a dispute with regard to title sought to be recovered suit for mere recovery of possession is not maintainable.
Reliance is also placed on a decision of this Court reported in Kanakadhara Constructions, Hyderabad v.K.Jhansi Lakshmi Bai3, that the plaintiff has to prove that he was dispossessed within six months before the date of filing of the suit.
Reliance is also placed on a decision reported in Rongali Deemudu v.
Smt.
Pothula Deemudamma4, wherein it was held that the burden lies on the plaintiff to prove that he was forcibly dispossessed within six months prior to date of filing of suit otherwise than by due process of law.
He has also relied on a decision reported in Ratan Lal Jain v.
Uma Shankar Vyas5, in support of his contention that where the decree directs delivery only of symbolic possession by persons in possession, other than the judgment-debtor, such persons are within their rights to object to execution proceedings if attempts are made to physically dispossess them.
He has also relied on a decision of the Apex Court reported in Balwant Narayan Bhagde v.
M.D.Bhagwat6, wherein the procedure for taking possession of vacant lands was discussed.
He further submitted that the defendants after coming to know that Punyakoti Narasimha Rao has no title to the property and that no patta was issued to him, they approached the revenue authorities and they were assigned house site pattas.
It is also his submission that the defendants constructed a compound wall and sheds and it was assessed municipal tax and the plaintiff himself admitted in the plaint that the defendants are in possession of the property since 2002.
According to him, the delivery warrant does not contain the schedule and even the possession certificate does not show the correct schedule and it does not contain on what date possession was actually delivered.
Per contra, Smt.
Y.L.Siva Kalpana Reddy, learned counsel for the respondent/plaintiff, submitted that the respondent herein filed the suit under Section 6 of the Specific Relief Act and where a suit has been filed under Section 6 of the Specific Relief Act, the question of proving or disproving the title does not arise.
The enquiry is confined to finding out whether the plaintiff was dispossessed within the period of six months from the date of institution of the suit, the title issue has to be completely ignored.
The remedy of unsuccessful party is only to file a suit based on title and the revision itself is not maintainable.
In support of her contention she relied on a decision reported in Sanjay Kumar Pandey v.
Gulbahar Sheikh7.
Her next submission is that, admittedly, the property was attached in O.S.No.242 of 1997 and the property was brought to sale and auction was conducted and the respondent became highest bidder and that sale certificate was issued in his favour and property was delivered to him by due process of law.
It is also her submission that when the Court Amin found that the door was locked the lower Court passed an order directing the Amin to broke open the lock and deliver the possession and accordingly the Court Amin broke open the locks and when he found certain movables in the said house he prepared list of those articles under an inventory in the presence of mediators and then handed over the same to the plaintiff after obtaining necessary bond and the lower Court recorded the delivery of possession on 28.02.2006.
It is also her submission that the defendants instead of approaching the Court or filing any applications under Order 21 Rule 99 CPC had given a false report to the police as if they were dispossessed illegally by the plaintiff on 28.02.2006 and on the same day they illegally trespassed into the land and forcibly dispossessed the plaintiff.
It is also her submission that in the above circumstances the suit is within limitation and there is no need to discuss the issue of title and since the plaintiff was dispossessed within six months illegally the decree passed by the lower Court is in accordance with law.
It is also her submission that the fiRs.defendant herein himself filed IA No.664 of 2003 in O.S.No.56 of 2002, wherein he stated that he purchased the suit property from Punyakoti Narasimha Rao under a registered sale deed dated 01.05.2002 and now he cannot dispute the title of Punyakoti Narasimha Rao.
It is also her submission that when the property was attached it is vacant site and even if the defendants had made some construction when the matter is pending before the Court, the Court need not take those temporary constructions into consideration and order delivery of possession.
She further submitted that initially the fiRs.defendant contended that he purchased the property from Punyakoti Narasimha Rao and that his own brother Katta Ramesh filed a suit against Punyakoti Narasimha Rao and when the plaintiff has deposited the sale amount when he became highest bidder the said amount was attached by the brother of the fiRs.defendant and therefore the fiRs.defendant has knowledge with regard to attachment and sale of the property.
The fiRs.defendant ought to have filed an application under Order 21 Rule 99 CPC but he kept quiet and he has not followed any procedure prescribed to be followed by a person who is dispossessed through the process of the Court.
It is further submitted that the defendants have taken the law into their hands and illegally dispossessed the plaintiff and the plaintiff cannot be dispossessed and therefore the suit filed by the plaintiff is maintainable.
It is further submitted that there is clear finding of the lower Court that the possession was delivered to the plaintiff through the process of the Court on 24.02.2006 and delivery was recorded on 28.02.2006 and under Section 14 of the Evidence Act a presumption was rightly drawn in favour of the plaintiff by the lower Court.
She further submitted that when the Amin went to deliver possession there was no obstruction and no application was filed under Order 21 Rule 97 CPC.
It is also her submission that the plaint averments clearly go to show that the plaintiff was dispossessed on 28.02.2006 and it is not correct to say that the plaintiff did not specifically plead that he was dispossessed on a particular day.
It is also submitted that the complaint given by the fiRs.defendant was treated as false and the plaintiff has been acquitted in the criminal case filed by the fiRs.defendant.
The main points that arise for consideration in this revision are; (1) whether the respondent/plaintiff had specifically pleaded and proved that he was dispossessed from the suit schedule property on 28.02.2006?.
and (2) whether there was delivery of possession of the property to the plaintiff by the Court Amin?.
Section 6 of the Specific Relief Act is as follows.
6.
Suit by person dispossessed of immovable property-(1) If any person is dispossessed without his consent of immovable property otherwise than in due couRs.of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought- (a) after the expiry of six months from the date of dispossession; or (b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
The legal position is well settled.
The decisions relied on by Sr.P.
Gangarami Reddy, particularly the decision of this Court in Kanakadhara Constructions's case (3 supra).which is relied on by the other side also, categorically deal with Section 6 of the Specific Relief Act.
In the said decision it was observed as follows.
".In the suit of this nature, the question of title is not germane.
Section 6 of the Act envisages a suit for possession on the premise of dispossession of the plaintiff without his consent of immovable property otherwise than in due couRs.of law.
When the suit is filed under Section 6 of the Act for possession, the sole consideration for the Court is possession.
The scope of enquiry is thus limited to possession within six months immediately preceding the date of filing of the suit.
In such a suit, the defendant cannot set up a defence of title in himself.
The only defence that can legitimately be set up is antecedent possession.
It is obvious from sub-section(1) of Section 6 of the Act itself, which says that the person dispossessed can recover possession notwithstanding any other title that may be set up in such suit.
Thus, the scope of enquiry is limited to the question of possession.".
Similar view was expressed by this Court in Mohd.
Ibrahim v.
Smt.
Munni @ Zainab Bee8, and by the Madras High Court in Petchimuthu @ Mani v.
Anitha Sruthi9.
The Madras High Court categorically held thus.
".The proceeding contemplated under Section 6 of the Specific Relief Act (hereinafter referred to as ".the Act".) is summary in nature.
The Court was concerned only with the factum of dispossession otherwise than in due process of law.
The question of title is immaterial in such proceedings.
In case the Court was of the view that the materials produced by the plaintiff clearly shows that he was dispossessed within six months of the institution of the suit, the Court was obliged to permit him to recover possession.
This provision was intended to enforce the rule of law as otherwise there would be attempt to recover possession without approaching the Court of law and through the means forbidden bylaw.
The unsuccessful defendant in such a summary suit was not without remedy.
It would enable him to establish his title by way of a comprehensive suit and to recover possession.".
I have also considered Daggubati Ranganayakulu's case (2 supra).The facts of the said case are entirely different.
As seen from the facts of the said case Section 6 of the Specific Relief Act was not discussed in that case, therefore the said decision is not applicable to the facts of the present case.
It is an admitted fact that the defendants have filed separate suits in O.S.Nos.233 of 2011, 405 of 2012 and 407 of 2012 seeking declaration of title and recovery of possession and other reliefs.
Thus the main issue i.e., title to the property has to be decided in those suits.
Suffice to say that it is not in dispute that the property was under attachment in O.S.No.242 of 1997 on the file of the Senior Civil Judge, Nellore, filed by one Gollamudi Radha Prathima against Punyakoti Narasimha Rao and his wife Vijaya.
It appears from the record that Punyakoti Narasimha Rao claimed that the revenue authorities assigned the said land to him in proceedings TKRC.E-1/4195/69.
Of course, Ex.B4 letter, vide Rc.B.709/2006, dated 20.03.2006, addressed by the Mandal Revenue Officer, Nellore to the Sub-Inspector of Police, V Town Police Station, Nellore, reveals that the patta said to have been issued in favour of Punyakoti Narasimha Rao comprised by Plot No.167 in Survey No.444 of Kondayapalem village of Nellore Mandal is not genuine.
Even according to the case of the defendants Punyakoti Narasimha Rao cheated them.
It is also an admitted fact that the fiRs.defendant in O.S.No.56 of 2002 filed by one Naga Sarojini Devi against Punyakoti Narasimha Rao filed IA No.664 of 2003 contended that he purchased the plaint schedule property from Punyakoti Narasimha Rao under a registered sale deed dated 01.05.2002.
Thus, at one stage rightly or wrongly the fiRs.defendant had purchased the property from Punyakoti Narasimha Rao.
It has to be seen that the property was already attached on 24.02.2006 and it was shown as a vacant site.
Admittedly, the said property was brought to sale and the plaintiff became highest bidder in the auction held on 26.07.2005.
The defendants claim that they were issued pattas by the Mandal Revenue Officer, vide proceedings dated 05.12.2005.
Whether Punyakoti Narasimha Rao had cheated the defendants, whether the patta certificates under which Punyakoti Narasimha Rao claimed title was genuine and whether the pattas granted in favour of the defendants on 05.12.2005 confirm a title to them and whether the attachment and sale of the property was illegal and irregular and consequently the sale in favour of the plaintiff is valid or not have to be decided in a comprehensive suit for title.
There cannot be any doubt that the fiRs.defendant was in possession of the property as on the date when the Amin went to deliver the possession.
What is the procedure contemplated to deliver vacant site when a third party is found to be in possession of the property and whether there should be any actual delivery of possession or a symbolic delivery of possession cannot be decided in these proceedings.
Of course, there cannot be any doubt to say that when any other person other than the judgment debtor is in possession of the property he cannot be straight away dispossessed and there should be symbolic delivery of possession.
The Apex Court in Ratan Lal Jain's case (5 supra) observed as follows.
".Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.
(Rule 36) The former is known as actual or physical delivery of possession while the latter is known as delivery of formal or symbolic possession.
In the latter case, the person in actual occupation is not physically dispossessed from his possession of the decretal property.
Still delivery of possession in the manner contemplated by Rule 36 remains delivery of formal or symbolic possession so far as the person in actual possession is concerned but as against the person bound by the decree, it amounts to actual delivery of possession.".
Of course, it is also settled law that even symbolic delivery of possession amounts to actual delivery of possession, anyhow there is no need to discuss the same in detail.
Order 21 Rule 99 is as follows.
".99.
Dispossession by decree-holder or purchaser:-(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree by the purchaser thereof, he may make application to the Court complaining of such dispossession.
(2) Where any may such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.".
Admittedly, the fiRs.defendant has not made any application as required under Order 21 Rule 99 CPC.
The lower Court could have passed an order under Order 21 Rule 100 CPC and all questions including questions relating to right, title and interest in the property arising between the parties could be decided under Rule 101 of Order 21 CPC.
As seen from the record, it appears that there is no restraint or obstruction of taking movable property when the Amin want to deliver possession.
Where a certain procedure has been contemplated under Rule 97 of Order 21 CPC, I am of the considered view that the procedure prescribed under Order 21 Rules 35 and 36 CPC has been followed or not and whether the fiRs.defendant could have filed an application to set aside the sale on the ground of irregularity or fraud need not be gone into in this revision, since the defendants have not availed any opportunity as provided under the Rules of Order 21 CPC.
The main contention of Sr.P.
Gangarami Reddy is that there was no actual delivery of possession on 24.02.2006, but as seen from the record, the Amin when found that the door was locked, he reported the same to the Court and on the plaintiff filing EA No.25 of 2006 in O.S.No.242 of 1997, the Court passed an order directing the Amin to break open the locks and deliver possession.
Of course, in the delivery warrant, the schedule of property attached was described as vacant site.
He further contends that according to the defendants, they have constructed a shed and the same was assessed to tax by the Municipal authorities and thus the nature of property was different since there was a construction of RCC roof and 6 1/2 Ankanams of super structure was there in the suit schedule property.
It appears that the property was attached on 20.04.2002 and on that day it was shown as vacant site.
Earlier, the fiRs.defendant has admitted that he purchased the property from Punyakoti Narasimha Rao on 01.05.2002 under a registered sale deed.
In the said sale deed also this property is shown as vacant site.
Admittedly, the property was under attachment.
Whether Punyakoti Narasimha Rao has title or not and whether attachment is legal or not cannot be decided in this revision.
However, one thing is clear that the super structures came into existence after 2002 and the same were existing as on the date of delivery of possession on 24.02.2006.
If at all it is proved that Punyakoti Narasimha Rao had no title to the property and the attachment itself is irregular then the construction made by the defendants could be treated as illegal.
If at all it is held that as on the date of attachment of the property Punyakoti Narasimha Rao had title to the property and it was validly attached then even if some constructions have been subsequently made and temporary sheds are constructed in an attached property the same amounts to legal.
Since the title suit is pending, I am not inclined to express any opinion on this aspect.
However, the fact remains that according to the Amin the property was delivered on 24.02.2006.
As seen from the record the Amin found certain movable properties in the house when he had opened the house after breaking open the lock.
He prepared an inventory and obtained the signatures of mediators and then handed over the articles to the plaintiff under a bond and the same is clear from Ex.A2.
The preparation of inventory of movables found in the disputed house and handing over the same to the plaintiff proves that there was delivery of possession to the plaintiff on 24.02.2006.
When once there is delivery of possession, the only required thing to be proved by the plaintiff is that he was illegally dispossessed.
It is the case of Sr.P.
Gangarami Reddy that no specific date is shown in the plaint with regard to dispossession of the plaintiff.
The plaintiff has categorically deposed that on 28.02.2006 the defendants lodged a false complaint before the Station House Officer, V Town Police Station, Nellore, and subsequently the police came there and the fiRs.defendant under the guise of above referred report, taking the assistance of the police, broke open the lock put up by him and trespassed into the property illegally and highhandedly and thus he was dispossessed.
In the cause of action column in para 10 of the plaint also he has specifically stated that on 28.02.2006 the fiRs.defendant gave false report to the Station House Officer, V Town Police Station, Nellore, and subsequently with the help of police entered into the property by removing the locks and trespassed into the same and thereby dispossessed him.
So, a reading of the entire plaint makes it clear that the plaintiff averred that he was illegally dispossessed on 28.02.2006.
He deposed the same in his evidence as PW.1.
Of couRs.it is argued that PW.1 did not give any police complaint on the same day.
The plaintiff filed the present suit on 31.03.2006.
In the above circumstances, it appears that the requirements under Section 6 of the Specific Relief Act have been fulfilled.
Hence, there is no need to discuss the title and other aspects of the parties.
Since the plaintiff was put in possession of the property through the process of the Court and subsequently he was dispossessed, the plaintiff's suit under Section 6 of the Specific Relief Act is maintainable.
There is no illegality or irregularity in the impugned judgment passed by the lower Court.
I do not see any merits in the revision and the same is liable to be dismissed.
Accordingly, the CRP is dismissed.
However, in the circumstances, no costs.
As a sequel, the miscellaneous petitions, if any, pending in this revision petition, shall stand closed.
______________________ B.
CHANDRA KUMAR, J.
Date: 11th February, 2014