Sec. 6 of Specific relief Act - Auction purchaser was dispossessed after delivery of possession by court Amina , high highhandedly by defendants claiming that they hold title and not the JDr - Immediately filed suit for recovery of possession - trial rightly decreed the suit - their Lordships of High court held that in sec.6 of Specific Relief Act - what one has to see only the when the person in rightful possession through process of the court was dispossessed , whether the suit is filed with in 6 months from the date of dispossession or not - Title etc., should be ignored = Katta Penchalaswamy and others ...Petitioners/Defendants Mopuru Veera Raghava Reddy. ...Respondent/Plaintiff = 2014 ( Feb. Part ) judis.nic.in/judis_andhra/filename=10939
Sec. 6 of Specific relief Act - Auction purchaser was dispossessed after delivery of possession by court Amina , high highhandedly by defendants claiming that they hold title and not the JDr - Immediately filed suit for recovery of possession - trial rightly decreed the suit - their Lordships of High court held that in sec.6 of Specific Relief Act - what one has to see only the when the person in rightful possession through process of the court was dispossessed , whether the suit is filed with in 6 months from the date of dispossession or not - Title etc., should be ignored =
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.
"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 course
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."
Sec.6 of Specific Relief Act - Possession proved - title not necessary
High held that
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 first
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 first 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 course 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.
2014 ( Feb. Part ) judis.nic.in/judis_andhra/filename=10939
THE HONOURABLE SRI 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:Sri P. Gangarami Reddy
Counsel for the Respondent:Smt. Y.L. Siva Kalpana Reddy
<Gist :
>Head Note:
?Cases Referred:
1. AIR 1974 Orissa 173
2. 2008(4) ALT 495
3. 2005(6) ALD 805
4. 1998(1) ALT 371
5. (2002) 2 SCC 656
6. AIR 1975 SC 1767
7. 2004(3) ALT 63(SC)
8. 2007(1) ALT 511
9. Laws (Mad)-2009-9-18
HON'BLE SRI 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 first 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 first 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 first 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
first 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.
Sri 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 first
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 first 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 first defendant and therefore the first defendant
has knowledge with regard to attachment and sale of the property. The first
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 first defendant was treated as
false and the plaintiff has been acquitted in the criminal case filed by the
first 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
course 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 Sri 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 course
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 first
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 first
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 first 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 first 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
first 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 Sri 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 first 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 Sri 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 first
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 first 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 course 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
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.
"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 course
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."
Sec.6 of Specific Relief Act - Possession proved - title not necessary
High held that
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 first
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 first 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 course 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.
2014 ( Feb. Part ) judis.nic.in/judis_andhra/filename=10939
THE HONOURABLE SRI 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:Sri P. Gangarami Reddy
Counsel for the Respondent:Smt. Y.L. Siva Kalpana Reddy
<Gist :
>Head Note:
?Cases Referred:
1. AIR 1974 Orissa 173
2. 2008(4) ALT 495
3. 2005(6) ALD 805
4. 1998(1) ALT 371
5. (2002) 2 SCC 656
6. AIR 1975 SC 1767
7. 2004(3) ALT 63(SC)
8. 2007(1) ALT 511
9. Laws (Mad)-2009-9-18
HON'BLE SRI 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 first 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 first 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 first 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
first 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.
Sri 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 first
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 first 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 first defendant and therefore the first defendant
has knowledge with regard to attachment and sale of the property. The first
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 first defendant was treated as
false and the plaintiff has been acquitted in the criminal case filed by the
first 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
course 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 Sri 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 course
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 first
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 first
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 first 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 first 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
first 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 Sri 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 first 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 Sri 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 first
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 first 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 course 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
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