IMPORTANT POINT
A claim petition under CPC must establish legal rights and possession; mere assertions without evidence are insufficient to challenge execution of a decree.

JUDGMENT :

M.G. Priyadarsini, J.

Aggrieved by the judgment and decree dated 14.06.2023 in E.A.No.24 of 2023 (Old E.A.No.5 of 2021) in E.P. No.1403 of 2022 (Old E.P.No.65 of 2006) in O.S.No.13 of 2003 (hereinafter will be referred as ‘impugned order’) passed by the learned X Additional District Judge, R.R. District at L.B.Nagar (hereinafter will be referred as ‘trial Court’), the plaintiff preferred the present appeal to set aside the impugned judgment.

2. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the trial Court.

3. The brief facts of the case, which necessitated the appellant to file the present appeal, are that the plaintiff filed O.S.No.13 of 2003 on the file of I Additional District Judge at Mahaboobnagar seeking specific performance of agreement of sale dated 27.05.2003 against defendant Nos.1 and 2 and the said suit was decreed on contest on 02.09.2006. The plaintiff filed E.P. No.65 of 2006 subsequently renumbered as E.P.No.1403 of 2022. During the pendency of the EP, the claim petitioner i.e., the appellant herein has filed E.A.No.5 of 2021 subsequently renumbered as E.A.No.24 of 2023 under order XXI Rule 58 read with Section 151 of the Code of Civil Procedure. The brief averments of the claim application filed by the claim petitioner are as under :

(a) Defendant Nos.1 and 2 are the absolute owners, pattedars and possessors of the suit schedule property having purchased the same through registered sale deed bearing document No. 2252 of 1999 dated 05.08.1999 from Manikonda Yadaiah Goud but the said Manikonda Yadaiah Goud unilaterally executed the registered cancellation deed bearing document No.24650 of 2006 dated 02.12.2006. Aggrieved by the same, the defendant Nos.1 and 2 filed W.P. No.23856 of 2008 declaring unilateral cancellation of the sale deed as null and void. Since the date of purchase, the defendant Nos.1 and 2 are in actual and exclusive possession of the suit schedule property and pattadar passbooks and title deeds were issued in their names.

(b) Defendant Nos.1 and 2 have entered into registered development agreement – cum – General Power of Attorney bearing document No.2050 of 2020 dated 24.01.2020 with the claim petitioner to the extent of Ac.14.10 guntas in Sy.Nos.9/E and 32/A of Solipur Village to do all the acts with 43% share of sale. The claim petitioner has paid Rs.50,00,000/- to the defendant Nos.1 and 2 on 27.12.2019, 20.01.2020 and 25.01.2020 towards refundable deposits. The claim petitioner spent huge amounts for the development of the said land.

(c) In the month of March, 2021 the claim petitioner came to know that plaintiff filed O.S.No.13 of 2003 against defendant Nos.1 and 2 and the said suit was decreed on 02.09.2006. The defendant Nos.1 and 2 filed A.S.no.657 of 2006, which was dismissed on 23.03.2010 by the High Court. The claim petitioner also came to know that the E.P. No.65 of 2006 filed by the plaintiff was dismissed on 27.11.2019. After dismissal of the EP filed by the plaintiff, the defendant Nos.1 and 2 entered into registered development agreement – cum – General Power of Attorney bearing document No.2050 of 2020 dated 24.01.2020 with the claim petitioner and also delivered possession of the lands. The plaintiff is aware of the fact that the suit schedule lands were in possession of the claim petitioner since 24.01.2020 and the plaintiff never made any objection before any authority and he had not added him as party to the Execution Petition.

(d) It appears that the plaintiff and defendant Nos.1 and 2 connived together and created litigation in the matter after entering into development agreement – cum – General Power of Attorney bearing document No.2050 of 2020 dated 24.01.2020 with the claim petitioner. The claim petitioner came to know that the agreement of sale itself was manipulated document and the collusive suit was filed so as to make wrongful gain and to usurp the lands for which the claim petitioner entered into.

4. To the ab