Andhra HC (Pre-Telangana)
Dongala Venkaiah And Anr. vs Dongala Raji Reddy on 6 July, 2007
Equivalent citations: AIR2007AP344, 2007(5)ALD716, AIR 2007 ANDHRA PRADESH 344, 2008 (1) ABR (NOC) 114 (AP), 2008 (1) AJHAR (NOC) 103 (AP), 2008 AIHC NOC 2, (2007) 5 ANDHLD 716, (2007) 5 ANDH LT 621, 2008 (1) ABR (NOC) 114 (A. P.) = AIR 2007 ANDHRA PRADESH 344, 2008 (1) AKAR (NOC) 30 (A.P.), 2008 AIHC (NOC) 2 (A. P.) = AIR 2007 ANDHRA PRADESH 344, 2008 (1) AJHAR (NOC) 103 (A. P.) = AIR 2007 ANDHRA PRADESH 344
ORDER Gopala Krishna Tamada, J.
1. The Civil Revision Petition is directed against the order dated 16.4.2007 made in E.A. No. 28 of 2004 in E.P. No. 5 of 2003 in O.S. No. 79 of 1999 on the file of the Junior Civil Judge, Sulthanabad.
2. A short and interesting point raised by Sri I. Aga Reddy, learned Counsel for the petitioners-defendants is that without there being a decree for mandatory injunction, can the trial Court order execution and direct the bailiff to remove the structures and handover possession of the vacant land?
3. Before adverting to the contentions put forth by the learned Counsel for the petitioners as well as Sri Sudhershan Reddy, learned Counsel for the respondent-plaintiff, it is necessary to go into the facts of the case.
4. For the sake of convenience, the parties will be referred to as they are arrayed in the original suit.
5. The plaintiff filed O.S. No. 79 of 1999 for recovery of possession of Ac.0.06 guntas of land in S. No. 1513 situated in Garrepalli village, Sulthanabad Mandal. The defendants filed written statement. The trial Court, after recording the evidence of the plaintiff, posted the suit for defendants' evidence, however the defendants have not chosen to let in any evidence either oral or documentary. Based on the pleadings and the evidence available on record, the trial Court decreed the suit on 30.7.2002 declaring the title of the plaintiff over the suit schedule land and further ordered recovery of possession of Ac.0.04 guntas of land from the 1sl defendant and Ac.0.02 guntas of land from the 2nd defendant. When the plaintiff filed E.P. No. 5 of 2003 seeking execution of the decree, the defendants, instead of preferring an appeal against the judgment, filed a separate suit i.e. O.S. No. 24 of 2005 for cancellation of the decree, dated 30.7.2002, however the suit was dismissed on 9.2.2007. The trial Court, in E.P. No. 5 of 2003, issued warrant to the bailiff directing him to handover possession of the plaint schedule property to the plaintiff-decree holder, and accordingly, the bailiff visited the land on 17.9.2004 for execution of warrant, but as there were structures like residential houses in the land he could not execute the warrant and deliver possession of the land to the plaintiff. Therefore, it necessitated the plaintiff to file E.A.Nc.28 of 2004 under Order XXI Rule 97 C.P.C. requesting the that Court to give directions to the bailiff to demolish the constructions made by the judgment debtors/defendants in Ac.0.06 guntas of land. The defendants, on notice, put in their appearance and filed counter opposing the petition and stated that the suit instituted by the plaintiff is false and because of the ignorance of the defendants, the plaintiff obtained an ex parte decree and thereafter filed the present petition seeking delivery of the possession. According to the defendants, even by the time the plaintiff instituted the suit, the structures were in existence and the plaintiff totally suppressed the facts.
6. On the strength of the pleadings of both the plaintiff and the defendants, the Court framed a point for consideration as to whether there are any justifiable grounds to direct the Bailiff of the Court to demolish the structures existing in the suit schedule land in order to deliver the land in favour of the plaintiff as prayed for.
7. Having analyzed the entire point, the learned Junior Civil Judge, while rejecting the defence put in by the defendants, gave a direction to the Bailiff to deliver the suit schedule land to the plaintiff after demolishing the existing structures and clearing all movables belonging to the defendants. If, for any reason, the defendants do not cooperate in removing the movables from the existing structures, the bailiff was further directed to make an inventory of all the movables in the presence of two respectable panchas i.e. Panchayat Secretary and Village Servant and keep all the movables in the custody of Panchayat Secretary to be delivered to the plaintiff as per Rule 35 of Order XXI C.P.C. Challenging the order dated 16.4.2007, the defendants have preferred this Civil Revision Petition.
8. The learned Counsel for the petitioners-defendants has strenuously contended that without a prayer and decree for mandatory injunction, the trial Court cannot direct the bailiff to remove the structures/residential houses. In this context, he has placed strong reliance on the judgment of the Apex Court reported in B. Gangadhar v. B.G. Rajalingam wherein the learned Judges, at para 5 of the judgment, held to the following effect:
The person in possession of any immovable property has the right to exclude all others from his possession and enjoyment and if for any reason he is wrongfully deprived of what he owns, he has a right to recover possession of the same from the person who wrongfully gets into possession of it. The right of ownership of a property carries with it the right of enjoyment the right to its access and all other beneficial enjoyment incidental thereto. If any obstruction is raised by putting up a construction or prevents the passage or right to access to the property pendente lite, the plaintiff has been given right and the decree-holder is empowered to have it removed in execution without tortuous remedy of separate suit seeking mandatory injunction or for possession so as to avoid delay in execution or frustration and thereby defeat the decree.
9. On the contrary, Sri Sudershan Reddy, learned Counsel for the respondent-plaintiff, has vehemently opposed the submissions made by Sri I. Aga Reddy and contended that the judgment on which the learned Counsel for the petitioners-defendants has relied is very much in his favour and in that context, he has drawn my attention to the relevant portion of the judgment at paragraph 6 which reads thus:
Rule 35(3) of Order 21 itself manifests that when a decree for possession of immovable property was granted and delivery of possession was directed to be done, the Court executing the decree is entitled to pass such incidental, ancillary or necessary others for effective enforcement of the decree for possession. That power also includes the power to remove any obstruction or super-structure made pendente lite. The exercise of incidental, ancillary or inherent power is consequential to deliver possession of the property in execution of the decree. No doubt, the decree does not contain a mandatory injunction for demolition. But when the decree for possession had become final and the judgment-debtor or a person interested or claiming right through the judgment-debtor has taken law in his hands and made any construction on the property pending suit, the decree-holder is not bound by any such construction. The relief of mandatory injunction, therefore, is consequential to or necessary for effectuation of the decree for possession. It is not necessary to file a separate suit when the construction was made pending suit without permission of the Court. Otherwise, the decree becomes in executable driving the plaintiff again for another round of litigation which the Code expressly prohibits such multiplicity of proceedings.
It is his further contention that the defendants have made the judgment and decree final as they did not prefer any appeal, and according to him, even in the suit filed by the petitioners-defendants for cancellation of the judgment and decree in O.S. No. 79 of 1999, they did not take this specific stand, and having been unsuccessful in their attempt to get the decree cancelled, they have now come forward with a new plea stating that without a prayer or a decree for mandatory injunction, the executing Court cannot direct the bailiff to remove the constructions and handover the vacant possession and the executing Court has rightly rejected their plea.
10. The only contention urged by the learned Counsel for the petitioners-defendants is that supposing some constructions were made during the pendency of the suit, it can be understood that the respondent-plaintiff, without asking for mandatory injunction can definitely seek the relief of possession, but as the structures/residential, buildings were already in existence even at the time of institution of the suit and the plaintiff failed to ask for a decree for mandatory injunction, the executing Court cannot order delivery of vacant possession.
11. No doubt, in the above-cited judgment, the learned Judges used the word "Pendente lite", but this Court is not inclined to accept the contention made by the learned Counsel for the petitioners-defendants. In the factual scenario of that particular case, the learned Judges used the word, but it does not mean that if such constructions were made only during the pendency of the suit then the plaintiff can execute the decree without tortuous remedy of separate suit seeking mandatory injunction or possession. If really it is interpreted in the manner in which the learned Counsel for the petitioners-defendants has contended, the very decree as well as the judgment becomes false, and in my considered view, it would amount to abuse of process of the Court. After all, here is a person (plaintiff) who has a decree whereby his title with regard to Ac.0.06 guntas of land was declared and recovery of possession was also ordered. Simply because, he has not sought for relief of mandatory injunction, in cannot be said that the decree is in executable. When once a decree declaring the plaintiff's title and recovery of possession is made by the Court, in my considered opinion, it is immaterial whether any structures were made in the suit schedule land either prior to the institution of the suit or during the pendency of the suit.
12. Similarly, raising a dispute in regard to the description or identity of the suit schedule property or a dispute with regard to the boundaries of the suit schedule property is only a bogey to delay the eviction by abusing the process of the Court. In fact, this view of mine is further fortified by the judgment of the Madras High Court reported in Kannu Gounder v. Natesa Gounder wherein the learned Judge observed thus:
Though the ruling deals with the construction put up during the pendency of the suit, the same principle would be applicable even to the construction put up prior to the filing of the suit also. It is needless to point out that the construction put up by the defendant/judgment-debtor whether before or after filing of the suit, is liable to be removed if there is a prayer for possession. When there is a decree for delivery for vacant possession which would mean and include, delivery after removing all the structures or any thing in the suit property and therefore, the plaintiff/decree holder is entitled to take delivery of possession after removal of any manner of construction or structures in the suit property and therefore, I am not inclined to accept the arguments advanced on behalf of the revision petitioner.
13. In the light of the attractive proposition of law laid down by the Madras High Court, this Civil Revision Petition fails and the same is dismissed. However, as requested by the learned Counsel for the petitioners-defendants, 15 (fifteen) days' time from the date of receipt of a copy of this order is granted to the petitioners to vacate the suit schedule premises. No costs.