Bari Ramesh & Anr. v. Swargam Mallesham and 11 others

This revision under Article 227 of the Constitution of India is directed against the order, dated 08-06-2009, in I.A.No.1168 of 2008, in O.S.No.23 of 2003, on the file of the I Additional District Judge, Karimnagar, whereunder and whereby the application filed under Order 6 Rule 17 C.P.C. to amend the plaint was dismissed.

The averments in the affidavit filed in support of the petition are as follows: The suit land is an open land consisting of 0.95 guntas. Respondent No.9 encroached Ac.0.03 guntas out of 0.09 guntas of land and made construction. The petitioners opposed the same by filing application in the Grama Panchayat and got published in Newspaper. In spite of the same, respondent no.9 continued construction and as such their efforts to stop him from making construction became futile. The petitioners earlier filed I.A.300 of 2007 and I.A.299 of 2007 seeking the relief of recovery of possession of Ac.0.03 guntas of land and for amendment of suit schedule property. The Court dismissed the said petitions. They filed C.R.P.Nos.2282 and 2283 of 2007 before the High Court and the High Court, by order, dated 09-08-2007 dismissed the revisions observing that the survey numbers and boundaries are not clear and property was not specifically identifiable. In view of the above observations of the High Court, petitioners filed I.A.930 of 2007 under Order 6 Rule 17 CPC giving some particulars, but the same was dismissed. Aggrieved thereby, they filed CRP 1060 of 2008. At the time of hearing in the revision, the infirmity of lacking of particulars of property is continued, their counsel seeks permission to withdraw the revision with a liberty to file afresh with proper particulars. Accordingly the High Court allowed the revision by order, dated 24-10-2008. Hence, they filed the present petition for amendment for recovery of possession of the building constructed in Ac.0.03 guntas of land which is part and form of Sy.No.318/B at Arepally village situated within the boundaries as mentioned in the amendment petition.

The respondents filed counter denying the allegations in the affidavit and stated that respondent No.9 purchased 266 square yards out of Sy.No.317/A and B, 318/B situated at Arepally village under registered sale deed from Dollani Kushaiah who in turn purchased the same from its original owner Rajaiah, father of plaintiff and B.Mallamma, paternal grand mother of plaintiff. He also purchased 533 square yards out of Sy.No.317/ABC and 318/B from Keerthy Raghuernder, who purchased the same from original owner Rajaiah in the year 1980. He also purchased 226 square yards in the said Sy.No.317/ABC and 318/B from Anuradha Ekbote, who purchased the same from purchaser of plaintiff Rajaiah and B.Mallamma. Thus respondent No.9 became owner and possessor of 1066 square yards and he constructed a pucca house in the year 2000 by obtaining permission from Grama Panchayat. There is no identity of land to be recovered and also there is no date of dispossession. Hence, they pray to dismiss the petition as not maintainable.

No oral evidence was adduced on behalf of either side, but Exs.R1 to R15 were marked on behalf of the respondents.

The trail Court after considering the material on record, dismissed the petition on the ground that the relief sought for is barred by limitation and the relief was already decided by this Court and the petitioners cannot re-agitate the same. Aggrieved thereby, the present revision is filed by the petitioners.

Learned counsel appearing for the petitioners contended that with regard to recovery of possession, it is a question of law and fact, that whether the suit was filed within 12 years or not, the same has to be decided by the trial Court after adducing evidence, that this Court has given an opportunity to file a fresh application and that cannot be a ground to reject the amendment of the plaint and hence, he prays to allow the revision.

On the other hand, learned counsel appearing for the respondents contended that no document was filed to show that the petitioners were dispossessed in the year 2005, that they have not filed any document to show that they were in possession of the property for more than 12 years and hence, he prays to dismiss the revision.

As seen from the impugned order, the trial Court dismissed the petition on the ground that the petitioners did not file a single document to show that they were in possession of the land till the alleged dispossession on 24-10-2005. That is a question of fact to be decided after the trial. Whether the suit is barred by limitation or not is not a pure question of law. It is a mixed question of fact and law, which has to be decided after adducing evidence by both parties. Similarly, the observation of the trial Court that the petitioners cannot re-agitate the same relief cannot be accepted. Similarly, the order passed by this Court in CRP 1060 of 2008 appears to be misconceived because this Court has given an opportunity to the petitioners to file afresh application with regard to clear and categorical identity of the property in dispute. In view of the fact that it is alleged by the petitioners that they were dispossessed in the year 2005, they are entitled to seek the relief of recovery of possession. The trial Court has not given correct finding and hence, the impugned order is liable to be set aside.