MOTAMARII RAMAIAH Vs. MALLIAH

JUDGEMENT

(1.) This is a petition to revisetheorder of the District Munisif, Mabbubabad dated in E.A. No. 24 of 1951 in E. P. No. 21 of 1955 in O. S. No. 124 of 1353 F.

(2.) The material facts are briefly these: The petitioner are the decree-holders in O. S. No. 124/1353 F. on the file of the District Munsiff, Mahbubabad. Kumari Baliga, the third respondent here in is the sole Judgement-debtor. Respondents 2 and 3 as well as the father of the 1st respondent were brothers. In 1916, the ancestor of the petitioners and the father of respondents 2 and 3, Kumari Ramiah purchased the land in Survey 3, Kumari Ramiah purchased of land in Survey No. 355 and someother land. In 1334 Fasli the father of respondent 2 and 3 executed an unregistered sale deed in favour of the father of the petitioners. In 1940, therewas a lease, Ex. B-11 by the petitioners in favour of the third respondent. Subsequently in 1942, there was dispute between the third respondent and the petitioners regarding possession of the land. The Petitioners contended in that case that, after the termination of the leaseEx. B-11, they had taken over possession from the third respondent and that they continued to bein possession. Proceedings under Section 145 Cr. P. C. wereintiated. They ended against the petitioners and the land was released in favour of the third respondent. Respondents 1 and 2 werenot parties in those proceedings.

(3.) Aggrieved against the order under Section 145 Cr. P. C. the petitioners filed O. S. No. 124 of 1353 F. against the third respondent in the Court of the District Munsiff, Mahbubabad. At a very late stage, when the evidence had beeen closed, the father of the first respondent made an application for being impleaded in that suit alleging that heand the second respondent had obtained specific 2/3rd of theland in partition and werein seperate possession of the land and that, therefore, they werein seperate possession of the land in partition and were in seperate possession of the land and that, therefore, they were interested in Survey No. 355, the suit property. The petitioners did not opposethe petition. Still, the learned District Munsiff dismissed that petition. Utimately, the litigation in O. S. No. 124/1353 F. ended by the High Court in passing a decreein favour of the petitioners in thesuit in 1954. They filed E.P. No. 21 of 1955 for possesion of thesuit land consisting of Ac. 7-25 guntas in Survey No. 355 in execution of the decreein O. S. No. 124 of 1353 F. When the bailiff attempted to deliver claiming that they were in possession of specific2/3rd portion of the land having obtained it in a partition between them and the third respondent about twenty years prior to thedateof the objection petition and that 2/3rd land was not lableto be delivered in execution.The sameday i.e. 1-6-55, respondent 1 and 2 also filed a claim petition E.A. No. 24 of 1951 under XXI Rule 97 C. P. C. claiming title and possession to the specific 2/3rd land of Survey No. 355 and praying for an order that their 2/3rd land was not liable to be delivered. On the sameday, the Court perused this petition (hereafter referred to for convenience as the objection petition) and passed an order directing delivery of 1/3rd land of S. No. 355, which was claimed by respondents 1 and 2, and gave time to the decree-holders who were present in court, to file counter. On 21-6-1955, the petitioners field a counter contending that, even it there was a partition it must have taken place only after the suit was field, and that even if such a partition was made during the period of suit, it would not affect the decree and the right of the petitioners under that decree. Thelearned District Munsiff held an enquiry in the course of which respondent 1 and 2 as well as the petitioners let in evidence; oral and documentary. Both sides examined four witnesses. In addition, the respondents marked Exs. A.1 to A.5 and the petitioners marked Exs. B-1 to B-14. The learned District Munsiff passed an order dated 5-12-1955 dismissing the objection petition.Respondents 1 and 2 field a revision in this Court. This Court passes an order setting aside the order passed by thelearned District Munsiff on the ground that he had not discussed the evidence and directing fresh disposal of the objection petition on the evidence on record. Accordingly, the learned District Munsiff discussed the oral evidence and choseto believe the evidence of P. Ws. 1 to 4 i.e., the evidence let in on the side of the respondents in preference to the oral evidence adduced on behalf of thepetitioners. He also considered the documentary evidence. By an order dated 24-12-1959, the learned District Munsiff allowed the objection of respondents 1 and 2 and ordered that the specific 2/3rd portion which they claimed in their objection petition should not be delivered in E. P. No. 21 of 1955. The petitioners felt aggrieved by that order and field this petition praying for revision of that order.