Sri Sangameswara Swamy Varu, Rep. by Its Executive Officer Vs. Dokiseela Ramulu and ors. - Court Judgment

Excerpt:
- - there cannot be any better instance of lopsided approach to the issue, than this.orderl. narasimha reddy, j.1. this revision is filed against the order, dated 09.09.2008, passed by the court of the junior civil judge, repalle, guntur district in e.a. no. 18 of 2007 in e.a. no. 80 of 2005 in e.p. no. 32 of 2005 in o.s. no. 32 of 1974.2. the first respondent was the tenant in respect of an extent of acs. 1.80 cents of land in survey nos. 123/5 and 129/2 of sangam village, vangara mandal, srikakulam district. he filed o.s. no. 32 of 1974 in the trial court for the relief of declaration of his rights as tenant of the land and for perpetual injunction. the suit was decreed on 31.10.1977 and the decree became final.3. nearly 30 years after the date of decree, the first respondent filed e.p. no. 32 of 2005 under order 21 rule 37 c.p.c. for arrest of the petitioner herein alleging that he tried to interfere with the possession of the land on 06.07.2005. he also filed e.a. no. 80 of 2005 for temporary injunction. an order of temporary injunction is said to have been granted.4. alleging that the petitioner dispossessed him on 28.07.2005, and inducted respondents 2 and 3 in possession of the property, the first respondent filed e.a. no. 18 of 2007 under section 151 c.p.c. with a prayer to order restitution of the possession of the property. the petitioner opposed the e.a. on several grounds, including the one of maintainability. it was pleaded that by virtue of a judgment of the hon'ble supreme court reported in state of a.p. v. nallamilli rami reddi : 2002 (2) alt 1 (sc) : air 2001 sc 3616, the lease that existed in favour of the first respondent stood terminated by operation of section 82 of the andhra pradesh charitable and hindu religious institutions and endowments act, 1987 (for short 'the act') and consequently, the possession of the property was assumed on 26.05.2003. it was further stated that the auction was held on 12.07.2003 and respondents 2 and 3, who are the highest bidders, were inducted into possession.5. through the order under revision, the trial court allowed the e.a. and directed restitution of the property.6. sri v.t.m. prasad, the learned counsel for the petitioner submits that the application filed by the first respondent was totally untenable in law. he contends that the e.p. itself was filed 30 years after the date of decree and even assuming that there was interference with the possession of the first respondent, the only remedy open to him was to seek arrest or attachment of the property, which, in fact, has been prayed for in the e.p. he contends that filing of an application under section 151 c.p.c. for restitution of the property is unheard-of. he places reliance upon a judgment of this court in g. anandam v. the warangal municipal corporation 1997 (1) alt 434.7. sri kuriti bhaskara rao, the learned counsel for the first respondent, on the other hand, submits that though the decree for perpetual injunction was operating against the petitioner, they have dispossessed the first respondent highhandedly, that too, when an order of temporary injunction granted by the executing court was in force.8. the first respondent filed e.a. no. 18 of 2007 under section 151 c.p.c. with a prayer to direct the petitioner and respondents 2 and 3 'to vacate the decree schedule property and order for restitution of the decree schedule property'. this application came to be presented in e.p. no. 32 of 2005, which was filed under order 21 rule 37 c.p.c. the first respondent was aware that the maximum relief that he can get under the relevant provisions is to cause the arrest of the petitioner on proving that there was interference with the possession of the property. it is noteworthy that e.p. itself was filed 30 years after the decree was passed. on the face of it, it was barred by limitation. further, it is not as if the state of affairs remained static ever since the date of decree.9. the first respondent admitted that he is the tenant of the petitioner. till the year 2003, when the supreme court rendered its judgment referred to one supra, the provisions of the andhra tenancy act were applied even to the lands held by the religious institutions. as a result of the judgment oact came into force and all tenancies in respect of the lands covered by that act stood terminated. thereafterf the supreme court, section 82 of the , the leasehold rights in respect of the land were put to auction. in case the petitioner felt aggrieved by any steps taken under the act, he ought to have availed the remedies. the decree passed three decades ago became handy for him to file the e.a.10. assuming that the petitioner violated the terms of the decree in o.s. no. 32 of 1974, the maximum that could have been done was that either he be arrested or the property be attached. restitution of the possession of the property as a measure of execution of decree for injunction is just unthinkable. in anandam's case (supra), this court held that even where the decree-holder in a suit for perpetual injunction is dispossessed, his remedy is to file a suit for recovery of possession and that restitution of possession cannot be ordered in an execution petition filed for enforcement of the decree. added to that, the executing court has chosen to order restitution in an application filed under section 151 c.p.c. even while the e.p. was pending. there cannot be any better instance of lopsided approach to the issue, than this.11. hence, the civil revision petition is allowed and the order under revision is set aside. the possession of the land shall be with respondents 2 and 3 and in case the first respondent intends to seek recovery of possession thereof, it shall be open to him to file a suit for that purpose. there shall be i no order as to costs.

Judgment:
ORDER

L. Narasimha Reddy, J.

1. This revision is filed against the order, dated 09.09.2008, passed by the Court of the Junior Civil Judge, Repalle, Guntur District in E.A. No. 18 of 2007 in E.A. No. 80 of 2005 in E.P. No. 32 of 2005 in O.S. No. 32 of 1974.

2. The first respondent was the tenant in respect of an extent of Acs. 1.80 cents of land in Survey Nos. 123/5 and 129/2 of Sangam Village, Vangara Mandal, Srikakulam District. He filed O.S. No. 32 of 1974 in the trial Court for the relief of declaration of his rights as tenant of the land and for perpetual injunction. The suit was decreed on 31.10.1977 and the decree became final.

3. Nearly 30 years after the date of decree, the first respondent filed E.P. No. 32 of 2005 under Order 21 Rule 37 C.P.C. for arrest of the petitioner herein alleging that he tried to interfere with the possession of the land on 06.07.2005. He also filed E.A. No. 80 of 2005 for temporary injunction. An order of temporary injunction is said to have been granted.

4. Alleging that the petitioner dispossessed him on 28.07.2005, and inducted respondents 2 and 3 in possession of the property, the first respondent filed E.A. No. 18 of 2007 under Section 151 C.P.C. with a prayer to order restitution of the possession of the property. The petitioner opposed the E.A. on several grounds, including the one of maintainability. It was pleaded that by virtue of a judgment of the Hon'ble Supreme Court reported in State of A.P. v. Nallamilli Rami Reddi : 2002 (2) ALT 1 (SC) : AIR 2001 SC 3616, the lease that existed in favour of the first respondent stood terminated by operation of Section 82 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short 'the Act') and consequently, the possession of the property was assumed on 26.05.2003. It was further stated that the auction was held on 12.07.2003 and respondents 2 and 3, who are the highest bidders, were inducted into possession.

5. Through the order under revision, the trial Court allowed the E.A. and directed restitution of the property.

6. Sri V.T.M. Prasad, the learned Counsel for the petitioner submits that the application filed by the first respondent was totally untenable in law. He contends that the E.P. itself was filed 30 years after the date of decree and even assuming that there was interference with the possession of the first respondent, the only remedy open to him was to seek arrest or attachment of the property, which, in fact, has been prayed for in the E.P. He contends that filing of an application under Section 151 C.P.C. for restitution of the property is unheard-of. He places reliance upon a judgment of this Court in G. Anandam v. The Warangal Municipal Corporation 1997 (1) ALT 434.

7. Sri Kuriti Bhaskara Rao, the learned Counsel for the first respondent, on the other hand, submits that though the decree for perpetual injunction was operating against the petitioner, they have dispossessed the first respondent highhandedly, that too, when an order of temporary injunction granted by the executing Court was in force.

8. The first respondent filed E.A. No. 18 of 2007 under Section 151 C.P.C. with a prayer to direct the petitioner and respondents 2 and 3 'to vacate the decree schedule property and order for restitution of the decree schedule property'. This application came to be presented in E.P. No. 32 of 2005, which was filed under Order 21 Rule 37 C.P.C. The first respondent was aware that the maximum relief that he can get under the relevant provisions is to cause the arrest of the petitioner on proving that there was interference with the possession of the property. It is noteworthy that E.P. itself was filed 30 years after the decree was passed. On the face of it, it was barred by limitation. Further, it is not as if the state of affairs remained static ever since the date of decree.

9. The first respondent admitted that he is the tenant of the petitioner. Till the year 2003, when the Supreme Court rendered its judgment referred to one supra, the provisions of the Andhra Tenancy Act were applied even to the lands held by the religious institutions. As a result of the judgment oAct came into force and all tenancies in respect of the lands covered by that Act stood terminated. Thereafterf the Supreme Court, Section 82 of the , the leasehold rights in respect of the land were put to auction. In case the petitioner felt aggrieved by any steps taken under the Act, he ought to have availed the remedies. The decree passed three decades ago became handy for him to file the E.A.

10. Assuming that the petitioner violated the terms of the decree in O.S. No. 32 of 1974, the maximum that could have been done was that either he be arrested or the property be attached. Restitution of the possession of the property as a measure of execution of decree for injunction is just unthinkable. In Anandam's case (supra), this Court held that even where the decree-holder in a suit for perpetual injunction is dispossessed, his remedy is to file a suit for recovery of possession and that restitution of possession cannot be ordered in an execution petition filed for enforcement of the decree. Added to that, the executing Court has chosen to order restitution in an application filed under Section 151 C.P.C. even while the E.P. was pending. There cannot be any better instance of lopsided approach to the issue, than this.

11. Hence, the civil revision petition is allowed and the order under revision is set aside. The possession of the land shall be with respondents 2 and 3 and in case the first respondent intends to seek recovery of possession thereof, it shall be open to him to file a suit for that purpose. There shall be I no order as to costs.