Andhra HC (Pre-Telangana)
Thota Venkatanaramma And Anr. vs Eruva Enna Reddy on 5 November, 2004
Equivalent citations: 2005(1)ALD810, 2005(1)ALT654
ORDER C.Y. Somayajulu, J.
1. Aggrieved by the dismissal of E.P. No. 59 of 2001 in O.S. No. 275 of 1979 on the file of the Court of Principal Junior Civil Judge, Karimnagar, decree-holders filed this revision.
2. Revision petitioners obtained a decree for declaration of their title to six guntas of land in Sy.No. 153 of Gunturpalli H/o Bommakal Village, bounded on the East by 9 ft. wide road, West by the land of Musuku Yella Reddy; North by the land of Rajesham; and South by the land of Thomas Reddy, and for a perpetual injunction restraining the respondent from interfering their possession over the said land, which became final. Subsequently, they filed E.P. No. 59 of 2001 alleging that the respondent, who had an opportunity to obey the decree, had wilfully failed to obey the decree and so he may be arrested and detained in civil prison for a period of six months under Rule 32 of Order 21 C.P.C.
3. Respondent/JDr filed a counter, contending that the decree in O.S.No. 275 of 1979, is a fraudulent decree and that revision petitioners (decree-holders) are -not in possession of the land shown in the E.P. or any part of the land in Sy.No. 153/B and that the land covered by decree is different from the land mentioned in the schedule appended to the E.P. and that revision petitioners are not in possession of the land shown in E.P. and that he purchased 12 guntas of land in Sy.No. 153/B of Bommakal Village on 10.2.1961 and obtained possession, thereof and constructed a house bearing Door No. ll-7/A in the year 1982 therein, after obtaining permission from the Gram Panchayat and is in possession and enjoyment of thereof and that in fact revision petitioners filed O.S. No. 349 of 1997 against him seeking a decree of perpetual injunction basing on the decree in O.S. No. 275 of 1979, wherein he filed a written statement, denying the averments in the plaint and that the said suit was dismissed as not pressed on 29.3.2001, and so, E.P. is liable to be dismissed.
4. In support of the case of revision petitioners, 2nd revision petitioner was examined as PW.1. They did not adduce any documentary evidence. In support of his case respondent examined himself as RW. 1 and two other witnesses as RWs. 2 and 3 and marked Exs. B. 1 to B.8. After considering the evidence on record, the Executing Court dismissed the E.P. by order under revision.
5. The contention of the learned Counsel for revision petitioners is that Executing Court dismissing the E.P. on the ground that there is no documentary evidence to show that the respondent violated the order of injunction is erroneous because there can be no documentary evidence to show the violation of injunction and was also in error in holding that the decree in O.S. No. 275 of 1979 was not a valid decree, as it was obtained by fraud, and that the order under revision is liable to be set aside because the evidence of 2nd revision petitioner as PW. 1 clearly shows that there is violation of injunction order passed by the Court and so the respondent is liable to be punished under Rule 34, Order 21 CPC. Learned Counsel for the revision petitioners placed strong reliance on Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, , in support of his contention that the Executing Court cannot go behind decree even if it is erroneous in law or on facts and also on J.R. Ramarao v. Smt. Indira Deeadayalu Naidu, AIR 2004 NOC243 (Kant.), where it is held that correctness of the decree passed by a Trial Court cannot be judged by the Executing Court and even if a wrong order is passed by the Trial Court, the Executing Court has no power to rectify that error.
6. The contention of the learned Counsel for respondent is that the land covered by the decree in O.S. No. 275 of 1979 and the property mentioned in the E.P. schedule are not the same, because the boundaries mentioned in the E.P. schedule and the boundaries mentioned in the decree do not tally. The property shown in the E.P. schedule is "House bearing No. 11 -8 situated at Gunturpalli H/o Bommakal, Karimnagar Mandal, bounded on East - house of Thumma Rayapa Reddy and G. Balreddy; West - House of Shiva Reddy; North - road; and South - land of others". Boundaries of the property covered by the decree in O.S.No. 275 of 1979 are East 9 ft. wide road; West land of Musuku Yella Reddy, North land of Rajesham and South land of Thomas Reddy and so there are no grounds to interfere with the order under revision. He contends that revision petitioners filed another suit in O.S. No. 349 of 1997 seeking a decree of perpetual injunction restraining the respondent from constructing a house in the plaint schedule property and after the respondent filed a written statement contending that he is in possession -and enjoyment of said land covered by that suit, revision petitioner withdrew the suit and so it is clear that revision petitioners filed the E.P. with a fake claim that the building constructed by the respondent is in the land covered by O.S. No. 275 of 1979, without producing any proof in support of that claim and so, the order under revision needs no interference.
7. There can be no two opinions about the fact that an Executing Court cannot go behind decree, and has to execute the decree as it stands. But the question in this case is not whether the Executing Court can go behind the decree and find out its validity, but the question is whether the land covered by decree in O.S. No. 275 of 1979 and the E.P. schedule property are the same. The boundaries mentioned in property covered by the E.P. schedule are East - house of Thumma Rayapa Reddy and G. Balreddy, but not 9 ft. road as mentioned in the decree; West - House of Shiva Reddy, but not the lands of Musuku Yellareddy as mentioned in the decree; North - road, but not lands of Rajesham, as mentioned in the decree; and South - land of others, but not land of Thomas Reddy as mentioned in the decree. No doubt the decree is of the year 1979 and since E.P. was filed in 2001, i.e., more than 20 years after the date of decree, there is a possibility of the change in ownership of the lands adjacent to the land mentioned in the decree and so, the names of the neighbours may not tally. The decree-holder can establish that fact by adducing evidence to show about the change in ownership of the lands adjacent to the land covered by the decree. But there is nothing on record to show that there is a change in the ownership of the lands adjacent to the land covered by the decree. As per the decree in O.S.No. 275 of 1979 the eastern boundary of the land covered by the decree is 9 ft. wide road. That road cannot become the house of Thumma Rayapa Reddy and G. Balreddi, as mentioned in the E.P. schedule by passage of time. The northern boundary of the land covered by the decree is the land of Rajesham, but in the E.P. the schedule northern boundary is mentioned as road. For that reason and since the respondent clearly took a plea in his counter that the land covered by the decree is entirely different from the land covered by E.P. schedule, decree holders i.e., revision petitioners should have taken steps to establish that the land covered by the decree and the property covered by the E.P. schedule are one and the same. But they did not adduce any evidence in that regard. Thus, as rightly contended by the learned Counsel for the respondent, there is nothing on record to show that the land covered by the decree and land covered by the E.P. schedule are one and the same. Therefore, merely because it is mentioned that the respondent constructed a building in the lands covered by the E.P., it cannot be said that the respondent violated the orders passed against him in O.S. No. 275 of 1979, for the Executing Court, to entertain E.P. and punish the respondent.
8. That apart the revision petitioners had, long after obtaining obtained a decree in O.S. No. 275 of 1979, filed another suit in O.S. No. 349 of 1997 seeking an injunction restraining the respondent from proceeding with the construction of his house. When the respondent clearly alleged in the counter filed by him in the E.P. that the said suit was dismissed as not pressed, and has also referred to the said O.S. No. 349 of 1997 in the affidavit in lieu of chief examination, revision petitioners did not dispute the said fact and did not cross-examine him with regard to that statement. So, it is clear that revision petitioners are alive to the fact that respondent had constructed a house in the land covered by O.S. No. 349 of 1997, but, for the reasons best known to them, revision petitioners, did not state in the E.P. the violation of the decree, allegedly committed by the respondent. They simply stated that respondent who had an opportunity to obey the decree, wilfully failed to obey the same. The evidence adduced by the respondent shows that he constructed the house in 1982 after obtaining necessary sanction from the Panchayat. The E.P. with vague allegations is filed in 2001 i.e., 19 years after construction of the house by the respondent.
9. For that reason and for the reason there is no evidence on record to show that the land covered by the decree in O.S. No. 275 of 1979 is the same as the land in which the respondent constructed his house, the Court below dismissing the E.P. cannot be said to be erroneous and needs no interference.
10. Hence, the civil revision petition is dismissed. No costs.