MOTHIKA MUTYALU Vs. P VENKATA KRISHNA DIVAKAR

JUDGEMENT

(1.) These revisions are filed against the orders allowing the applications filed under Section 47 of the Code of Civil Procedure, hereinafter in short referred to as "Code" for the purpose of convenience, declaring that the decree-holders are not entitled to recover the respective petition schedule properties and the petitioners therein, arrayed as 1st respondent in all these civil revision petitions, are the title holders of the respective petition schedule properties. The third-party objectors to the E.P. proceedings had filed execution applications in EPNo.146/91 in OS No.161/ 61 on the file of I Additional Senior Civil Judge, Vijayawada under Section 47 of the Code. As already stated supra, these third party objectors are the purchasers under different registered sale deeds and their case is that from the respective dates of purchase they have been in possession and enjoyment of the respective properties. It is the case of the objectors - the contesting respondents in all these civil revision petitions, that the properties purchased by them originally were part of Acs. 11-00 of land in D.No.81 of Bhavanipuram and was owned by one Mothika Mutyalu, who is the great grandfather of respondents 1 and 2 shown in the execution applications, who are the revision petitioners in the present civil revision petitions. The said land was sold by the grandfather and father of "the revision petitioners-respondents 1 and 2, under a registered sale deed dated 25.8.1946 to one Koganti Nagabushanam, who is the father of the 3rd respondent shown in the execution applications one Ravi Anjamma @ Anjana Devi, shown as 2nd respondent in the present CRP Nos.581 to 590, 632,633 of 2001 and shown as 3rd respondent in CRP Nos.631 and 634 of 2001. After the death of the said Nagabushanam, as the legal heirs, the said Ravi Anjamma @ Anjana Devi and her mother sold the said Acs. 11 -00 of land to Potluri Satyanarayana, Venkateswararao, Venkatanarayana, Seetaramaswamy under separate registered sale deeds dated 15.7.1967 and after the purchase they were in possession and enjoyment of the same and in the years 1979 and 1980, the said persons had sold away the land to several purchasers and likewise by virtue of different sales, the present purchasers-objectors have been in possession and enjoyment of the respective properties. While the things stand thus, the revision petitioners herein, along with Amin came to the schedule mentioned properties for delivery of possession of 95 cents, including the properties described in the schedules and then only the applicants who filed these applications under Section 47 of the Code came to know about the decree and on enquiry it was brought to their notice that the sale in favour of Koganti Nagabushanam by the father and grand-father of the revision petitioners was upheld and a partition was ordered for the remaining extent as shown in the plaint schedule in O.S.No.161/61 and hence the alienees of the heirs of Koganti Nagabushanam i.e., the objectors-applicants who filed applications under Section 47 of the Code and other objectors also, are not liable for any claim of the revision petitioners in view of the judgment and decree in AS No.340/66 as confirmed in LPA No.99/72 on the file of Honourable High Court of A.P. It is also the case of the objectors that the land purchased by Koganti Nagabushanam was within definite boundaries and there is no ambiguity or any doubt about the identity of the property and the boundaries had been specifically given even in the sale deed dated 21-8-1946. It was also stated that these objectors-applicants who filed the applicants under Section 47 of the Code, had learnt that a Commissioner was appointed in IA No.3455/87 to effect partition totally ignoring the sale deed dated 21-8-1946 in favour of Nagabushanam and there can be no execution contrary to the decree made in AS No.340/66 and in the light of the facts and circumstances, the objectors-applicants filed the respective applications under Section 47 of the Code.

(2.) The 1st revision petitioner- 1st respondent had filed a detailed counter-affidavit denying all the averments questioning the very locus slandi of these alleged purchasers in raising such objections. The 1st revision petitioner had taken a stand stating that the decree-holders filed a suit in OS No,161/61 for partition of the plaint schedule properties and though the suit was dismissed by the Court of first instance, an appeal AS No.340/66 was allowed by the Honourable High Court of A.P. on 1-4-1970 by granting of decree for partition of Acs.3-52 cents into six equal shares and ordering delivery of l/3rd share to the 1st respondent- 2nd plaintiff therein, and thereafter they filed IA No.3555/81 for passing of a final decree in terms of the aforesaid decree and a Commissioner was appointed and the Commissioner with the help of a Surveyor, prepared a plan and submitted a report and a joint memo also was filed by both the parties and a final decree was passed on 11-4-1991. Then they filed EP No.146/9l to execute the said final decree praying the relief of putting them in possession of the property allotted to them by evicting the judgment debtors. It was also averred that the applicants who filed these applications under Section 47 of the Code have no right to question the final decree and the report of the Commissioner is in conformity with the decree made by the Honourable High Court of A.P. and it was also specifically denied that they are proceeding with the execution in respect of the very property which was sold to the 3rd defendant and later upheld by the Supreme Court. It was also stated that the executing Court cannot adjudicate the nature of dispute raised by the objectors-applicants in these applications filed under Section 47 of the Code.

(3.) The Court below had framed the following point for consideration: "Whether the petitioner is entitled for the declaration as prayed ?" and after discussing the respective contentions, ultimately had allowed the applications filed by the objectors applicants under Section 47 of the Code. It is pertinent to note that no evidence had been recorded in all these matters. Aggrieved by the orders made in these batch applications filed by the objectors-applicants under Section 47 of the Code, respondents 1 and 2 had preferred these civil revision petitions.