Dismissed

Gollapally Kistaiah v. Baswapuram Narsaiah

Telangana HC8 Apr 2011CRP/1075/2010

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision petition filed against an order under Section 144 CPC rejecting an application for restitution. The court held that restitution is generally for decree variation or unauthorized possession during pendency, and the petitioner, who claimed continuous possession, could not invoke Section 144.

What did the court decide?

Civil Revision Petition dismissed; no costs awarded.

Gollapally Kistaiah Vs Baswapuram Narsaiah — Property and Title | Telangana HC (2011)

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IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD

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FRIDAY, THE EIGHTH DAY OF APRIL, TWO THOUSAND AND ELEVEN

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PRESENT

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THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

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CIVIL REVISION PETITION No. 1075 OF 2010

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BETWEEN: Gollapally Kistaiah …PETITIONER AND Baswapuram Narsaiah …RESPONDENT

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The Court made the following:

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THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO

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CIVIL REVISION PETITION No. 1075 OF 2010

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O R D E R:

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The revision is filed against the order in I.A.No.99 of 2007 in O.S.No.58 of 1998 on the file of Principal Junior Civil Judge, Siddipet, dismissing an application under Section 144 r/w. 151 of the Civil Procedure Code (for short, “CPC”).

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2. The revision petitioner was the defendant in the suit O.S.No.58 of 1998, which was filed for permanent injunction with regard to an

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extent of Ac.0.24 Gts., of land in Sy.No.12 of Sivinipally village.

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3. The suit was originally decreed and thereafter the matter was carried in appeal and as against the appellate Court judgment 2^nd appeal was preferred and the matter was remanded to the first appellate Court again. The first appellate Court found that the plaintiff is in possession of Ac.0.06 Gts., of land only and is entitled for injunction to that extent. Thereafter, second appeal was preferred by the plaintiff and in Second Appeal No.1002 of 2004 this Court by its judgment dated 24.06.2005 confirmed the finding of the 1^st appellate Court to the extent of Ac.0.06 Gts., of land to which the plaintiff is entitled for injunction and dismissed the 2^nd appeal. Thereafter, the present application is filed by the petitioner contending that taking advantage of the injunction order in the original suit, a stone wall was removed and the plaintiff has occupied 18 guntas of land belonging to him and therefore, the restitution has to be granted. The lower Court after hearing the objections of the plaintiff and the material on record dismissed the application.

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4. The point for consideration is whether the relief of restitution can be granted to the revision petitioner in the suit?

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5. Generally, the remedy of restitution granted by a Court by exercising the power under Section 144 CPC arises only in cases where there is a variation of the decree and a person has got advantage of the decree earlier, which was subsequently varied. No doubt in some cases the law is also laid down that by virtue of an injunction order if a person unauthorisedly and high-handedly takes possession of the property even during the pendency of the suit, the restitution can be granted to the party. But, in this case the situation is quite different. It is the contention of the revision petitioner all along till the disposal of the second appeal that he has been in possession and

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enjoyment of the Ac.0.24 Gts., of land, which the plaintiff claimed. At no point of time the revision petitioner has brought to the notice of the Courts that by virtue of the injunction order the plaintiff got into possession of his land of Acs.0.18 Gts. It is true that a reference in the cross-examination of the plaintiff in the original suit shows that the stone wall was said to have been removed after the filing of the suit and injunction order. But that itself cannot be taken as a fact to come to a conclusion that the possession of the plaintiff over 18 guntas was obtained subsequently. In fact, the present plea of the revision petitioner that he lost possession after the filing of the suit is completely against his contention before the Court in the litigation. Therefore, the lower Court has rightly found that the power under Section 144 of CPC cannot be invoked. The petitioner is at liberty to file a suit for recovery of possession of the property or the possession of he is entitled if any.

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6. Accordingly, Civil Revision Petition is dismissed. No costs.

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________________________ N.R.L.NAGESWARA RAO, J

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Date: 08-04-2011.

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INL

Gollapally Kistaiah v. Baswapuram Narsaiah

Case brief

What is this about?

What did the court decide?

Gollapally Kistaiah v. Baswapuram Narsaiah

Case brief

What is this about?

What did the court decide?

What the court decided

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