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IN THE HIGH COURT OF STATE OF TELANGANA
T. AMARNATH GOUD, J.
Ashok Kumar Jain - Appellant
Versus
Karan Raj and Ors. - Respondents
IA No. 1 of 2020 in CRP No. 888 of 2020
Decided On : 21-01-2021
Civil Procedure Code,1908 - Section 115 - Terminating the E.P. by endorsement that warrant is executed in EP - Agreement of sale - Whether leave can be granted to petitioner to file the civil revision petition - Whether order impugned in this civil revision petition is legal and valid - first respondent filed suit against six defendants for specific performance of contract in respect of suit schedule property by virtue of an agreement of sale - Executed by defendant Nos. 1 to 4 therein in favour of first respondent/plaintiff. said suit was decreed ex parte first respondent filed in the said suit Trial Court directed defendant Nos. 1 to 4 to execute and register a regular sale deed in respect of the E.P. schedule property in his favour within three months from that date and in the event the defendants did not do so, the first respondent/plaintiff is entitled to get the same through Court - respondent filed and Court below, on behalf of the defendants, executed a sale deed in favour of first respondent in the said E.P. While so, during the pendency of the EP No - first respondent filed his counter. After adducing evidence, the Court below dismissed said Subsequently, the first respondent filed EA to deliver the possession of the schedule properties to him wherein the Trial Court issued warrant to the Field Assistant to deliver the vacant possession of the schedule properties to the first respondent - First respondent requested the Trial Court to grant sometime to take further steps to remove structures over the property and also on the ground that his mother-in-law had expired –
Finding of the court : boundaries to the schedule property suddenly appeared for the first time - Even in 2018 D.Hr., has not indicated as to how he could procure the boundaries of the subject land for execution when same were not mentioned in the earlier and also in the suit - There is no mentioning in as how the boundaries have been incorporated in the schedule of property and also in the order of warrant of the Court below. The reasoning of the Trial Court with regard to the inclusion of boundaries in the schedule of property is silent - Trial Court has not taken any action to deal with that aspect - Field Assistant in his report specifically mentioned that could not be executed because the schedule property is in possession of revision petitioner herein and there are poultry farms and plantations in the schedule property and hence possession could not be taken over and the same could not be handed over to D.Hr - Substantial rights of the parties seem to be involved in the case on hand because both parties are claiming title basing on their respective titles. Of course, that cannot be looked into in civil revision petition –
Result :Petition is allowed
ORDER :
T. Amarnath Goud, J.
1. This civil revision petition is filed under Section 115 of CPC assailing the order dated 19.2.2020 and consequential docket order dated 20.3.2020 terminating the E.P. by endorsement that warrant is executed in EP No. 16 of 2018 in OS No. 27 of 1999 on the file of the Court of the Senior Civil Judge, Medak.
2. The facts that led to the filing of the present civil revision petition, in nutshell, are as follows :
3. The first respondent filed the suit OS No. 27 of 1999 against six defendants for specific performance of contract in respect of the suit schedule property by virtue of an agreement of sale dated 1.11.1996 which was executed by defendant Nos. 1 to 4 therein in favour of the first respondent/plaintiff. The said suit was decreed ex parte on 28.3.2000. The first respondent filed EP No. 11 of 2002 in the said suit wherein the Trial Court directed the defendant Nos. 1 to 4 to execute and register a regular sale deed in respect of the E.P. schedule property in his favour within three months from that date and in the event the defendants did not do so, the first respondent/plaintiff is entitled to get the same through Court. Since the J.Drs., did not execute sale deed in favour of the first respondent, the first respondent filed EP No. 11 of 2002 and the Court below, on behalf of the defendants, executed a sale deed in favour of the first respondent in the said E.P. While so, during the pendency of the EP No. 11 of 2002, one Sambaiah Nayak filed EA No. 14 of 2006 in EP No. 11 of 2002 to raise attachment in the said E.P. to an extent of Acs. 15-10 guntas in Sy. No. 252 and Ac. 0-33 guntas in Sy. No. 250 situated at Ramanthapur Village, Yeldurthy Mandal, Medak District wherein the first respondent filed his counter. After adducing evidence, the Court below dismissed the said EA No. 14 of 2006 on 31.12.2014. Subsequently, the first respondent filed EA No. 9 of 2017 in EP No. 11 of 2002 to deliver the possession of the schedule properties to him wherein the Trial Court issued warrant to the Field Assistant to deliver the vacant possession of the schedule properties to the first respondent. The Field Assistant submitted his report stating that the warrant could not be executed as there is mango garden and some structures are existing thereon. The first respondent requested the Trial Court to grant sometime to take further steps to remove structures over the property and also on the ground that his mother-in-law had expired. As there was no progress in the matter despite ample time being given, the Trial Court closed the E.P. with liberty to the first respondent to take steps and to file fresh execution petition to deliver possession. Hence the first respondent filed the above E.P. praying the Court to remove the obstacles and the obstructions.
4. In the above EP No.16 of 2018 there was no contest from the side of the respondents/J.Drs. The executing Court by order dated 19.2.2020 directed the Field Assistant to remove the obstacles/obstructions found in the schedule properties and to deliver vacant possession of the property to the first respondent/D.Hr. The Trial Court further directed the Field Assistant to remove any person bound by the decree who may refuse to vacate the schedule properties with the assistance of the Surveyor and police while executing the warrant to the D.Hr. in respect of the schedule property admeasuring Acs. 15-10 guntas in Sy. No. 250 (Ac. 1-30 guntas out of Acs. 16-30 guntas) and Sy. No. 252 (Acs. 13-20 guntas out of Acs. 16-20 guntas) situated at Ramanthapur Village, Yeldurthy Mandal, Medak District.
5. The Field Assistant visited the schedule property on 18.3.2020 and conducted a panchanama in the presence of first respondent, Mandal Surveyor and police authorities and surveyed the schedule properties and handed over possession of the same to the first respondent, who executed a receipt in token thereof. As seen from the report of the Field Assistant it is to be noted that dur
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