SURYANARAYANA K Vs. B ANJANEYULU

JUDGEMENT

(1.) This revision is filed by the petitioner in EA 638/88 in O.S. 364/82 on the file of the I Additional Munsif Magistrate, Guntur questioning the impugned orders dated 3-7-1989 dismissing the said petition which was filed under Sees. 144 and 151 C.P.C. seeking restitution of the suit property.

(2.) The respondent herein, who is the plaintiff in O.S. 364/82, had filed the said suit contending that the lease granted under a registered deed in his favour by the defendant is an usufructuary mortgage and therefore, he is entitled for redemption of mortgage and for recovery of possession and profits. During the pendency of the suit, plaintiff filed LA. 1575 /83 for temporary injunction against the defendant pending disposal of the suit and the said petition was allowed granting such interim injunction. The defendant filed appeal against that order and the said appeal was dismissed. Subsequently, the suit was tried by the trial Court and it was dismissed. Thereupon, the plaintiff filed A.S. 146/86 and the said first appeal also was dismissed. Thereupon, the plaintiff filed S.A. 779/87 in the High Court. After the disposal of A.S.146/86, the defendant filed E.A. 638/88 under Secs. 144 and 151 CPC seeking restitution of the suit property from the plaintiff contending that on account of the temporary injunction orders passed by the trial Court during the pendency of the suit, the plaintiff dispossessed him (Defendant) taking advantage of such interim injunction and he continues to be in possession and enjoyment of the same unlawfully and that inasmuch as the suit was finally dismissed and as the first appeal filed by him was also dismissed, the defendant is entitled for restitution of the property from the plaintiff. The plaintiff opposed the said petition contending that there is no order passed by the Court directing delivery of possession of the property to him and such possession was not taken by him through Court and as such Sec. 144 CPC has no application to the present case. The learned District Munsif, on the basis of the evidence adduced before him dismissed the petition holding that the plaintiff, who is said to be the landlord of the defendant, is in possession of the property as such landlord and the defendant is claiming possession as tenant; that the decree passed in the suit has not become final as Second Appeal filed by the plaintiff is still pending in the High Court and that the defendant can seek his remedy only under the provisions of the Tenancy Act but not under Sec. 144 CPC. Questioning such orders, the present revision is filed.

(3.) Heard the Counsel.