MEGHRAJ GAYATRI DEVI Vs. JETLING RAJESHWAR

JUDGEMENT

(1.) The petitioner is the plaintiff. Aggrieved by the order dated 28-10-1997 in I.A. No. 765 of 1997 in O.S. No. 669 of 1993 on the file of the learned II Additional District Munsif, Warangal, the present revision under S. 115 of the Code of Civil Procedure, 1908 (for short 'CPC') is filed.

(2.) The brief facts are as follows :One Jetling Rajeswar Rao was the owner of the house bearing No. 13-7-121, Matwada, Warangal. After his death, disputes arose between his nephew one J. Rajeswar and his alleged adopted daughter Smt Gayatri Bai. The latter, the petitioner herein filed a suit for injunction being O.S. No. 669 of 1993 on the file of the Court of the II Additional District Munsif, Warangal. She also filed an application under Order 39, Rules 1 and 2, CPC being I.A. No. 1166 of 1993. Initially, an ex parte ad interim injunction was granted and later the same was made absolute. Aggrieved by the same, the defendant carried the matter in appeal being CMA No. 78 of 1994 and the same was dismissed on 16-7-1996. By virtue of the injunction, the defendant did not interfere with the possession of the plaintiff.

(3.) On 1-10-1997, the defendant filed I.A. No. 765 of 1997 purporting it to be under Order 39, Rule 7, CPC. In this application, he prayed the lower Court for a direction to preserve the property allegedly belonging to him by removing them from the first and ground floor rooms of the suit schedule property. In the accompanying affidavit it is alleged that though the matter is settled by mediators, the plaintiff is continuing the suit, that part of the suit house is in his exclusive possession and his household articles, cooking implements etc. are in the house. He also alleged that the municipal corporation of Warangal and Kakatiya Urban Development Authority marked out a portion of the building for demolition in the drive for widening the roads and if the articles are not removed and kept in safe custody, they would be damaged. The application was opposed by the petitioner herein inter alia contending that taking advantage of the absence of the plaintiff, the defendant intruded into the plaint schedule property. She filed IA No. 462 of 1994 seeking mandatory injunction to remove the locks put up by the defendant in April, 1994 and that after filing I.A. No. 463 of 1994, the defendant himself removed the locks and therefore the said I.A. was not pursued further. She also alleged that the Municipal Corporation of Warangal or Kakatiya Urban Development Authority never gave any notice and in fact the defendant himself gave a consent letter though he is not concerned with the suit schedule house. The applicability of Order 39, Rule 7, CPC to the facts of the case was also disputed.