Remanded

Marineni Chandraiah v. Kolluru Ramaiah ( Died )

Telangana HC21 Nov 2013CRP/676/2013

Case brief

AI extract

What is this about?

A civil revision petition challenged the lower court's dismissal of appeals and refusal to mark a commissioner's report. The High Court allowed the petition, remanding the matter for denova consideration to determine if the decree could be executed under Order XXI Rule 35 CPC given the existence of a thatched structure.

What did the court decide?

Civil Revision Petition allowed; matter remitted to the lower Court for denova consideration and disposal within 60 days.

Marineni Chandraiah Vs Kolluru Ramaiah ( Died ) — Execution and Attachment | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

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CIVIL REVISION PETITION No.676 of 2013 Date: 21-11-2013

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ORDER:

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This Civil Revision Petition is directed against the order dated 21.01.2013 in E.P.No.134 of 2005 in O.S.No.236 of 1998 on the file of the Principal Junior Civil Judge, Kavali.

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The petitioner herein is the 6^th respondent in E.P.No.134 of 2005 and 6^th defendant in O.S.No.236 of 1998.

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The brief facts of the case are as follows:

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The respondents 1 to 8 herein filed O.S.No.236 of 1998 for declaration of their right and title over item No.1 of the plaint schedule property and for delivery of the same to them and some other reliefs. Item No.1 of the plaint schedule property has been described as Survey No.331-1 of an extent of Ac.0.02 cents of dry land with specific boundaries. There is no reference about the existence of any structure in the plaint schedule. However, the plaintiffs have categorically stated that the defendants unauthorizedly occupied item No.1 of the plaint schedule property 1 ½ years back by keeping manure pits and putting a thatched kottam(hut) and they have no right to enter in the plaint schedule property and they are only trespassers. However, in their evidence also it is brought on record that the defendants erected a thatched house. Though the property was not fully described in item No.1 of the plaint schedule, there is a pleading and there

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appears to be evidence with regard to the existence of thatched hut. Therefore, it cannot be said that the plaintiffs have suppressed any material fact.

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The lower Court decreed the suit holding that the plaintiffs are entitled to declare their right and title over item Nos. 1 and 2 of the plaint schedule property and for possession of item No.1 of the plaint schedule property.

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It is not in dispute that the appeal and the second appeal filed against the judgment of the lower Court have been dismissed. On earlier occasion, the petitioners herein along with JDR Nos. 2, 7 and 8 filed E.A.Nos.147, 148 and 149 of 2012 for various reliefs. One of the reliefs claimed in E.A.No.147 of 2012 is to reopen the matter for filing certified copy of the commissioner’s report and plan in I.A.No.108 of 1998 in O.S.No.236 of 1998 dated 07.09.1998. The lower Court while dismissing those E.As observed as follows:

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“Even presuming that the commissioner’s report is necessary for this Court it can be looked into at the time of arguments, because the said commissioner’s report is part and parcel of the record. Hence, there is no necessity to mark that Advocate-Commissioner’s report by recall R.W.1.”

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One of the main contentions of Sri Srinivas Karra, learned counsel for the petitioner herein is that though an observation was made by the lower Court in the order dated 24.09.2012 in E.A.No.147 of 2008 that if necessary the advocate commissioner’s report can be looked into, but the said report was not taken into consideration while passing the impugned order.

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Though the lower Court has referred the contentions of the petitioner herein that item No.1 is not a vacant site and there is a thatched structure over it, it did not discuss the main controversy between the parties as to whether the decree passed by the lower Court can be executed under Order XXI Rule 35 (1) (2) or whether any incidental order thereto could be passed when there is a thatched hut in item No.1.

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In view of the same, the Civil Revision Petition is allowed and the matter is remitted back to the lower Court for denova consideration and the lower Court is directed to dispose of the matter as early as possible, preferably within 60 days from the date of receipt of a copy of this order. No costs.

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Consequently, Miscellaneous Petitions, if any, pending in this Civil Revision Petition shall stand closed.

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____________________ (B.CHANDRA KUMAR, J)

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Date: 21-11-2013 Pab

Marineni Chandraiah v. Kolluru Ramaiah ( Died )

Case brief

What is this about?

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Marineni Chandraiah v. Kolluru Ramaiah ( Died )

Case brief

What is this about?

What did the court decide?

What the court decided

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