The Hon’ble Smt. Justice Renuka Yara Civil Revision Petition No.2460 of 2024

Order:

This Civil Revision Petition is directed against the impugned order passed by the learned IV Addl. Junior Civil Judge at Khammam in I.A.No.9 of 2023 in O.S.No.660 of 2022, dated 24.08.2023, wherein, the Interlocutory Application filed under Order 7, Rule 11 of CPC to reject the plaint has been dismissed.

2. Heard Sri M. Srinivas Rao Bodduluri, learned counsel for the revision petitioners/defendant Nos.1 to 4 and Sri M. Ram Mohan, learned counsel for the respondent No.1/plaintiff.

3. The brief facts of the case are that respondent No.1/plaintiff filed the suit for mandatory injunction to direct the revision petitioners and respondent No.2 to demolish the illegal construction raised by them in the suit schedule property and to restrain them not to raise further illegal constructions in the suit schedule property. After filing of the suit, the revision petitioners filed an Interlocutory Application vide I.A.No.9 of 2023 under Order 7, Rule 11 of CPC alleging that there is no cause of action for filing the suit and therefore to reject the plaint. A reference is made to the pleadings of the plaint wherein it is alleged that the western boundary of the suit schedule property is an Electric Sub-station which was previously acquired for N.S.Canal. It is alleged that the revision petitioners herein obtained building construction permission vide File No.004552/ DP/DTCP/3018/0074/20001, dated 02.03.2002. Further, it is alleged that the revision petitioners taking advantage of old age of respondent No.1 and her residence at Hyderabad tried to encroach the land of respondent No.1 and started construction in Sy.No.80 of Pakabanda village of respondent No.1 illegally. The cause of action paragraph shows that on 03.04.2023, when the petitioners herein and respondent No.2 tried to raise illegal construction, the respondent No.1 got issued a legal notice to the Commissioner, Municipal Corporation, Khammam. Petitioner Nos.2 and 3 are in joint possession of 1,850 sq.yds., obtained building permission for construction of apartment. Certain part of the land was acquired under award No.4/77 in L.A.Case No.A1/873/77, dated 22.10.1977. There is a person by name Yakkala Lakshminarayana, who is in absolute exclusive possession of excess part of land in Sy.No.80 against one and all since 1977 and prior to 1977. Said possession is followed by Mulagundla Ragahvaiah and petitioner Nos.2 and 3 over N.S.Canal acquired land and relevant documents are filed. Since others are in occupation of the land, respondent No.1 cannot claim any right over the suit schedule property. The suit is barred by limitation under Article 65 of Limitation Act and under Section 113 of Limitation Act. The respondent No.1 and her predecessors are not in possession of the property for more than 40 years. Further, the relief of mandatory injunction is undervalued. In view of the aforementioned fact circumstances, there is no cause of action arose in between 03.04.2022 and 08.04.2022, the suit is frivolous in nature and liable to be rejected under Order 7, Rule 11 of CPC.

4. Respondent No.1 filed counter in I.A alleging that cause of action is revealed in the plaint and the matter of under valuation can be decided by framing an issue and the issue of limitation is a question of fact and law which can be decided only after trial and therefore, sought dismissal of the I.A.

5. Upon hearing both the sides, the learned Trial Court dismissed the I.A vide impugned order leading to filing of the present Civil Revision Petition.

6. In grounds of revision, it is pleaded that a doubt is raised over respondent No.1’s title and when the respondent No.1 is not in possession of the subject property, a suit for declaration of title and recovery of possession has to be filed. The complicated question of title and possession can be decided in a comprehensive suit for declaration of title but not in a suit for injunction. It is