GANJI CHANDRAIAH Vs. F E DINSHAW P LTD

JUDGEMENT

(1.) These three Civil Revision Petitions arise out of two applications filed by the Judgment-Debtors for appointment of a Commissioner to identify the property possession of which is sought by the Decreeholder in execution of the decree passed in O.S.No. 143 of 1979 on the file of V Addl.judge, City Civil Court, Hyderabad.

(2.) The respondent herein filed the said suit O.S.No. 143 of 1979 against the petitioners herein for recovery of possession of the plaint schedule property comprising an extent of 1192 Sq.yds. forming part of 1762 Sq.yds. of land situated in Jafferbagh, Khairatabad, Hyderabad within the specified boundaries mentioned in the plaint schedule. The said suit was filed on the allegations that the said extent of 1762 Sq.yds. was allotted to the respondents by virtue of the orders passed by this Court in C.S.No. 14 of 1958, that in pursuance of the said orders, the Receiver-cum-Commissioner delivered vacant possession of the said property to the respondent on 12-4-1973 and that subsequently the petitioners herein encroached upon 1192 Sq.yds. out of the said extent of 1762 Sq.yds. claiming under three sale deeds dt.14-8-1975,22-12-1976 and 7-1-1977 respectively in their favour by one Jahanara Begum who has no manner of right, title or interest in the said property. The petitioners herein resisted the said suit claiming title to the suit property by virtue of the sale deeds executed in their favour by Jahanara Begum and also pleading that they perfected title by adverse possession. Negativing their contentions, the trial Court decreed the suit by Judgment and Decree dt. 29-9-1984 and the same was confirmed by a learned single Judge of this Court in C.C.C.A.Nos. 124 and 125 of 1984 and Transfer C.C.C.A.No. 103 of 1985 dt. 4-3-1994 which was again affirmed by a Division Bench of this Court in L.P.A.NOS. 111 and 112 of 1994, dt. 8-7-1994. Thus the decree in O.S.No. 143 of 1979 has become final. In execution of the said decree, the respondent filed E.P.No. 5 of 1996 for delivery of the suit property to him. In the said Execution Petition, the Judgment-Debtors field the instant applications seeking the appointment of an Advocate Commissioner/Surveyor to identify and locate the suit schedule property on the plea that the property to which the respondent is held entitled as per the Judgment in L.P.A.Nos.111 and 112 of 1994 is not the same property which was claimed by the respondent in the suit. It is pointed out by the petitioner that as per the case set-out in the plaint in O.S.No. 143 of 1979, the suit property was allotted to the plaintiff by allotment order dt. 29-1-1971 passed in Application No. 73 of 1970 in Application No. 113 of 1972 in C.S.No. 14 of 1958 and the same was delivered to the plaintiff on 12-4-1973. But according to the Judgment in L.P.A.Nos. 111 and 112 of 1994, the property allotted to the plaintiff is from Group-I or VI which was approved by order dt. 21-12-1973 in Application No. 105 of 1973 (Ex.A-8). It is also contended that if the allotment itself was by order dated 21-12-1973, the property could not have been delivered to the plaintiff on 12-4-1973 as stated in the plaint. It is further pointed out that the boundaries mentioned in the plaint schedule do not tally with the boundaries as per the Sketch Plan 'B' annexed to the order of the Court which is marked as Ex.A-8.

(3.) The lower Court, however, dismissed the applications by the impugned order dt. 15-12-1997 on the ground that the self same objection was raised and negatived in L.P.A.Nos. 111 and 112 of 1994 and as such it is not open to the petitioners to raise the same objection once again in the Execution proceedings.