Mukesh Singh v. DR. B. Manik Chandra (died per tr's)

7. Smt. Krishna Sidhartha, Wo. H.P. Sidhartha, Aged: 57 years, R/o. G-06 Shikharam Apartments, Opp. Corner House Marathalli Main Road, Bangalore Occ. House hold rep. by GPA holderB. Ramchandra.

8. The Governrnent of A.P., Rep. by the Secretary to the Government Revenue Department, Govt. of A.P., Hyderabad

9. The Revenue Divisional OfFlc€r, Hyderabad Division, Hyderabad. Asifnagar Hyderabad 10' The Terhsirdar, Gorconda Mandar (presenty Asifnagar Mandar), Marepary, 11' syed M;ahmood (died after passing of Judgment & Decree,.dated 21.03.2000) t.A. No. I o. 5 ...Respondents Petition under Section 151 cPC praying that in the circumstances stated in the affidavit fited in supp.orr of the petition, tne nr:sn c;;;t!,; ffiffit:J'grant stay of all further prcceedings in EP.No. 3 0t 2o1d; i;" fil. of the lll Additionat chief Judge, CCC., l-lyderabad, pending disposal of the above CRp Counsel for the petitioners : Sri. Rakesh Sanghi counsel for th* Respondent No.s & 7 : M/s Manjiri S Ganu counser for thei Respondent No.3 aq sriiorrli"ii"i The Court made the following: ORDER IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THE HON'BLE SRI JUSTTCE NARSING RAO NANDTKONDA C.R.P. No3415 of 2015 6th Janu ary,2L26 Between: Mukesh Singh and another Dr.B.Manik Chandra & 10 others AND ..Petitioners Respondents ORDER: This Civil Revision Petition is filed by the petitioners under Section I l5 of the Civil Procedure Code, 1908 (for short C.P.C) assailing the order dated 18.11 .2013 in E.A.SR.No.I731 of 2013 in E.P.No.3 of 2013 passed by the III Additional Chi€f Judge, City Civil Courts, Hyderabad, (for short,'the impugned order'). l. The petitioners herein are third parties and, being aggrieved by the decree passed in O.S.No.240 of 1994, fild an application under Order 2l Rules 97-10[ read with Section 47 of the C.P.C., seeking to refuse to execute the execution proceedings i.e., E.P.No.3 of 2013. 2

2. TtLe brief facts of the case are that the decree holders had filed O.S.No.l140 of 1994 on the file of the III Additional C.hief Judge, City Civil Crrurts, Hyderabad, against respondent Nos8 to 10, seeking '. declaration of title and consequential perpetual injunction ir. respect of premises bearing H.No. I 0- I -24, Saifabad, Hyderabad, admeasuring 2,965 square yards, claiming title over the suit schedule property which situated in Survey No.157 of Mallepatly Village correlating to R.S.No.266lB of Khairtat'ad Village. After the demise of the original decree holder, respon&:nt Nos.2 to 7 were brought on record as his legal heirs.

3. It is contended that the decree in O.S.No.240 of 1994 was obtained by the cleceased judgment debtor by suppressing material facts, namely that the father of the first claim petitioner and husband of the second claim p,:titioner, late Shankar @ Shankar Singh, was in possession of Govemlnent land bearing Town Survey No.20 (part), admeasuring 1,024 square yards, for several decades, which constitutes the northern portion of the total extent claimed by respondent Nos.2 to 7. It is further contended that Manikchandra had earlier instituted trro suits, namely O.S.No. 1856 of 1980 on the file of the V Assistant Judge, City Civil Court, Hyderabad, and O.S.No.3232 of 1980 on the file of the VIII Assistant Judge, City Civil Court, Hyderabad, seeking perpetual injunction against Shankar @ Shankar Singh on the basis ofa registered :3 sale deed, and that both the suits were dismissed on the ground that Manikchandra failed to,prove title, entitlement, and posqession. Appeals in A.S.No.I49 of 1989 and r':S.No.9l of 1990 were atso dismissed by the Additional chief Judge, city civil ceyt, Hyderabad, byjudgment dared

08.07. lgg4,holding that the judgment debtor failed to piove the location, title, or possession, as the boundaries and extent could not be determined.

4. It is further contended that in the said suits, it was specifically pleaded that the father of claim petitioner No.l and husband of claim petitioner No.2 was in possession of the diryuted vacant land, and therefore the question of granting injunction did not arise, and accordingly the suits were dismissed. It is the contention of respondent Nos.2 ro 7 in O.S.No.240 of 1,994 that their deoeased father was in possession of the application schedule site and additional land bearing Municipal No.l0-l-24, Masab Tank, Hyderabad, correlating to Revenue Survey No.266lB of Khairtabad Village andSurveyNo.l5T of Mallepally Village, Golconda Mandal, admeasuring 2,950 square yards for decades lt is alleged that they suppressed the fact that they were not in possession of the balance extent of [,250 squar€ yards under occr4ation of late Shankar, located in Town Survey No.20 on the northern side of Town Survey No.25. '.:4::

5. It is further contended that the learned Govemment Pleader failed to bring to the notice of the learned Judge that the crucial.entry relating to the extent of Town Survey No.25 relied upon by the respondents had ' been ilk,gally tampered with, wherein the original entry of 0:13 squale meters ''ras ahbred to 12 acres 25 square meters by rounding off the original entry with a pencil. It is further contended that the judgment and decree in o.S.No.240 of Lgg4 were obtained fraudulentty and clandestinely by playing fraud upon the Court and by falsely claiming possession over lands in Town Survey Nos.2, 20, and 25 ofMailepally Village, and that revenue officials colluded with respondent Nos.2 to 7 and ignored the tampering of TSLR entries.

6. It is also contended that the f,rrst and second claim petitioners and their farnily members f,rled separate apptications for regularisation of their respective plots admeasuring approximately 224 square yards and 200 square yards under G.o.Ms.No.l66 dated 16.02.2008, admitting occupation of Government land situated in Town Survey No.20, Block 'G', ward No.37 of Mallepally Village, and that the Government accepteC the regularisation amounts, though execution of conveyance deeds is pending on account of writ petitions filed by respondent Nos.2 to 7 in w.P.Nos. 12174, t2175, t2176, 12371. and 12372 of 2011. It is further submitted that respondent Nos.2 to 7, _nor heino .^tisfied with i, I I t I t: ! i i I I I Il I I t I t: j : . I I I i i l i l : ; I I T I I :f, grabbing of the application schedule {and comprising a vast extent of Government land, instituted a bogus suit in O.S.No.21O5 of 20O9 by suppressing earlier litigation and obtained injunction. It is contended that the decree holders' claim is based on fraud and collusion, as the property covered under the alleged sale deed of 1918 A.D.'is different from the lands situated in Town Survey Nos.20 and25.

7. It is further contended that respondent Nos.2 to 7 had earlier institnted O.S.No.457 of 1979 in respect of premises,No.l0-I.24, Saifabad, Hyderabad, falsely correlating the salne to Survey No.266lB, and that an implead petition filed by Shankar Singh in that suit was dismissed. In C.R.P.No.4802 of 1987, the plaintiffs gave an undertaking before this Court that the property involved therein was differ-ent fiom the one claimed by Shankar Singh, based on which the Civil Revision Petition was dismissed. It is further contended that the judgrnents and decrees passed in O.S.No.240 of 1994 and O.S.No.457 of 1979 are not . binding on the claim petitioners in tenns of Section 43 of the Indian Evidence Act, 1872.

8. It is further contended that since respondent Nos.2 to 7 arc denyrng the title of the Government over the application schedule site, they are estopped from claiming adverse title and are, therefore, land grabbers, i I I J i : I I I) ::6:: and that the claim petitioners have already filed L.G.C.No.33 of 2012 under the provisions of the Andhra Pradesh Land Grabbing (Prohibition) Act, 19821. It appean that the application under Order XXI Rules 97-l0l read with Section 47 of the CJ.C. .r,as filed before the Executing Court at the stage of adrdssiSn;,66 without adjudicating either the admissibility or the rnerits of the claim, lhs learned Executing Court rejected E.A.SR.I.lo.l73l of 2013 at the inception stage.

9. Ag;grieved thereby, the present Civil Revision Petition has been filed contending that the learned Judge failed to consider the mandatory provisiorts of Section 47 of the C.P.C., which require that all questions relating to execution, discharge, or satisfaction of a decree must be decided,rcy the Executing Court and not by way of a separate suit. It is further oontended that the learned Judge ignored the fact that the responde,nts themselves have filed writ petitions challenging the assignmr:nts made by the Government in favour of the petitioners, and thereforer the claim petitioners, who are concemed with the suit schedule land fonning part of the execution proceedings, ought to have been heard and adjudicated during execution. [t is further contended that the petitioners and their family members became owners of the suit schedule land vide Government Orders dated 29.04.2011 and, being representatives of the judgment debtor, are entitled to contest the 7 execution proceedings, and that the application ought to have been decided on merits insteadof being rejected at the threshold,

10. It is further contended that the petitioners had no alternative remedy except invoking Section 47 of the C.P.C., and that the leamed trial court ignored the pendency of proceedings under the Andhra Pradesh Land Grabbing (Prohibition) Act, tg82, wherein the respondents were alleged to have illegally occupied a substantial portion of the suit tand. Learned counsel for the petitioners argued that the petitioners,.being legal heirs oflate'shankar Singh and being in possession of Government lan4 :rryere entitled to be heard, and that the decree in O.S.No.240-of:,1994 is fraudulent; iltegal, non est, and not binding upon them. It was further argud that by filing the execution petition for eviction,",'the decree holders.are attempting to exert pressure on revenue authorities to interfere with the suit schedule property.

11. Per contra, learned counsel for the respondents contended that the petitioners are merely relying upon Covernrnent Orders and that no conveyance deeds were ever issued in their favour, and that status quo orders were operating against them. 8

12. Lt:arned counsel for the petitioners placed reliance on the judgmerLts of the Honlble Supreme Court reported in AIR 2002 SC 2572, (2013) S;CC 97, AIR 1958 Se 394, and also on 1457 AP 784.

13. On a consideration of the en'tire mateda! placed on record and the rival sutrmissions, it appears that the learned Executing Court rejected the application solely on the ground that the petitioners were neither parties to the suit nor to the execution proceedings. Such rejection at the incepticn stage, without affording an opportunity to the petitioners to establish their claim under Section 47 of the C.P.C. and Order XXI Rules 97-101, cannot be sustained. The Executing Court ought to have afforded an opportunity to the petitioners and adjudicated their claims on merits. Order )(XI Rule 96 has no application to the f,acts of the present case, as the exe:cution does not relate to delivery of possession of a different nature

14. lt'his Court is of the considered opinion that the rejection o[ the application at the threshold is erroneous and unsustainable in law and warrants interference. Accordingly, the Civil Revision Petition is allowed, and tht: order dated 18.11.2013 passed by the III Additional Chief Judge, City Civil Courts, Hyderabad, in E.A.SR.No. 173 I of 2013 in E.P.No.3 of ..r-_ 2013 is set aside. The matter is remitted back to the Executing Court to ::9:: decide the said application on merits, after affording opportunity to both parties, and to dispose of the same in accordance with law. As a sequel, miscellaneous petitions pending, if any, shall stand closed. //TRUE COPYII .' SD/- L VIJAYA LAXMI ASSISTANT REGISTRAR 6 / SECTION OFFIGER . .1.1 ... The lllAdditiona! Chief Judge, City Civil Courts, Hyderabad. One CC to M/s ManjiriS Ganu, Advocate [OPUC] One CC to Sri Rakesh Sanghi, Advocate [OPUC] One CG to Sri.G.Dhananjai, Advocate [OPUC] Two CD Copies To,

1. 2. 3. 4. 5. Sa/PSL tw .t t / I HIGH COTJRT DATED: 06/01 12026 ORDER CRP.No.3415 of 2015 1 t-tE S ( 1 I It: F 2l,:6 * * ALLOWIT{G THE CRP 7(s s/"/ze -