B.JANARDHAN REDDY Vs. SMT. SHANTHA BAI

JUDGEMENT

(1.) The present Civil Revision Petition is filed under Article 227 of the Constitution of India, aggrieved by the order, dated 15.10.2019 passed in I.A.No.254 of 2019 in O.S.No.896 of 2007 on the file of the Principal District Judge at L.B.Nagar, Ranga Reddy District, wherein and whereunder an application filed by the respondents/plaintiffs for appointment of an advocate- commissioner to take measurement of the plinth area of ground and first floor pertaining to the building bearing Municipal No.10- 11-32 (Old No.11-32) and H.No.10-11-33 (Old No.11-33) situated at Fatehnagar, Balanagar Mandal, Ranga Reddy District, was allowed.

(2.) The facts in nutshell are as under:

(3.) The petitioner/defendant filed counter affidavit, inter alia contending that the original plaintiff late Smt. Shantha Bai executed an agreement of sale, dated 02.04.2003, which was marked as Ex.B2, and also executed three sale deeds bearing Nos.4378 of 2003, dated 09.04.2003, 8826 dated 25.09.2003 and 6292 of 2003 dated 21.05.2003, which were marked as Exs.B3, B5 and B6 through him as D.W.1 and in those documents, there is a clear recital of receipt of sale consideration and 2nd respondent/2nd plaintiff, who was examined as P.W.1, admitted in her evidence that her mother duly executed the above said agreement of sale and also registered sale deeds. It is pertinent to mention that the 2nd respondent/2nd plaintiff, is neither a witness nor a party to the above mentioned documents and he does not have locus standi to question the same by way of the petition particularly with regard to measurements. It was further stated that in the said documents, it was specifically mentioned with regard to the method of payment of sale consideration i.e. by way of cheques and cash payment and as such the very allegation that was made by the original plaintiff to the effect that those documents are nominal documents and the same were never intended to act upon is baseless and false. It was also stated that after 16 years of the execution of the said documents and delivery of possession, the present petition seeking for measurement of plinth area was filed, which clearly implies that the same was filed to drag the matter and deny the course of justice. It was further stated that the petitioner/defendant having got the sale deeds and agreement of sale, paid the consideration as per the measurements made in the sale deeds, which are duly admitted by P.W.1 and that P.W.1, who was not present at the time of execution of the above said documents, is not competent person to file the present petition with his own affidavit. It was also stated that a perusal of the para-wise pleadings in the suit, the original plaintiff never pleaded with regard to the measurements mentioned in the sale deeds and differences about the extent in respect of the purchase of the property and the plaint is based on broad pleadings for cancellation of agreement of sale and registered sale deeds, but in the affidavit in para No.3 it was mentioned that the extent is different and it is excess other than mentioned in the registered sale deeds. It was also stated that as per the original agreement of sale dated 02.04.2003, the petitioner/defendant is entitled to half share of the property that was belonged to the original plaintiff and that infact he filed two suits vide O.S.No.18 of 2005 and O.S.No.566 of 2006 for specific performance of sale basing on the agreement of sale and when he was entitled for the half share under the agreement of sale, the question of measurements and differences in respect of the extent in the sale deeds would not arise in the present form of the suit. It was further stated that with an intention to drag on the proceedings of the suit, the present petition was filed and that the same is liable to be dismissed as the same is devoid of merit.