Judgment:
ORDER
Motilal B. Naik, J.
1. In this C.R.P. the orders passed by the Lower Court in CM. A. 10/96, dated 15-7-1996, are challenged on various grounds.
2. On behalf of the petitioner, Sri P.S. Narayana, learned counsel for petitioner, has tried to take this Court to various factors leading to the institution of the suit O.S. 9/96 on the file of Pri. Subordinate Judge, Tirupati by the respondent herein for a declaration and consequential injunction. The dispute looks to me, is with regard to the Survey No. 269/2 situated in Tiruchanoor village, Tirupati Mandal, Chittoor District. There is claim and counter claim by both the petitioner as well as the respondent on the question of title over the properties.
3. On elaborate hearing from the learned counsel for the petitioner and Sri Venkata Narayana, learned counsel for the respondent, I am inclined to say the controversy could be resolved by directing the Trial Court to dispose of the suit O.S.No.9/96 pending on its file in an appropriate time. The learned counsel for the petitioner raised a preliminary objection before this Court by contending that when the title of the property is disputed and the matter is pending before the revenue authorities, filing of suit for declaration is not maintainable. In support of this contention he relied on a decision in Pushpagiri Math v. K. Veerabhadra Rao, : AIR1996SC2225 . With the assistance of the above decision, the learned counsel tried to persuade this Court to examine on the question of maintainability of the suit itself.
4. This Court is concerned with the question that is brought in the revision before this Court under Section 115 CPC. The short question that is to be considered in this CRP is whether the order impugned is permitted to be sustained. Keeping that aspect in view, I am not inclined to proceed to hear the revision on the question of maintainability of the suit itself. It would be proper to permit the petitioner if so advised to raise the preliminary objection before the Trial Court itself on the question of maintainability and the Trial Court shall examine that preliminary question as a preliminary issue and decide the case on these lines.
5. In the view I have taken the CRP is disposed of permitting the petitioner to raise preliminary objection on the question of maintainability of the suit before the Lower Court and on such preliminary issue being raised by the petitioner, the Lower Court shall examine and dispose of the issue on merits within a reasonable period. Pending disposal of the preliminary objection that would be raised by the petitioner, the respondent-plaintiff shall not proceed to make any permanent structure on the existing suit schedule property.
6. The learned counsel for the petitioner claimed that the petitioner has Sitara Clinical Powder Factory in the same survey number, and by virtue of the interim direction it is likely that the respondent would create problem to his day to day activity in the factory. If mat is so, the respondent shall not venture to obstruct the petitioner from operating the factory that is Sitara Clinical Powder Factory which is located in the said survey number.
7. In the result the order made in the CMA is modified as indicated above.