CRP/1382/2012 of Rentikota Jayalakshmi Vs Pakalapati Parvathamma on 31 December 2012

ORDER:-

This Civil Revision Petition is filed against the order and decreedated 13.12.2011 passed in C.M.A.No.24 of 2011 (C.M.A.) on the fileof Principal District Judge, Vizianagaram, wherein and whereby theappeal was dismissed confirming the order and decree dated07.07.2011 passed in I.A.No.553 of 2011 (I.A.) in O.S.No.215 of 2011(suit) on the file of Principal Junior Civil Judge, Vizianagaram.

2. The petitioner herein is the appellant in the C.M.A. and also thepetitioner in the I.A. and plaintiff in the suit. The respondents hereinare also the respondents in the C.M.A. and I.A. and defendants in thesuit. For convenience sake, I refer the parties as arrayed in the I.A.

3. The petitioner filed the I.A. under Order 39, Rule 1 and 2 C.P.C.to grant temporary injunction restraining the respondents, their men,servants, etc., from interfering with his so-called peaceful possessionand enjoyment of the schedule property (property) and direct therespondents not to make any constructions in 30 feet width commonroad there till the disposal of the suit. The I.A. was dismissed by thePrincipal Junior Civil Judge on the ground that there was prima facietampering of the width of the road in the Sale deed of the petitionerdated 25.06.2003 marked as Ex.A.2 and except Ex.A.2, the petitionerhad not produced any other document to show that her vendor’svendor got right and title over the property to convey the same propertyto his vendor, whereby a clear cloud was cast on the title of thepetitioner over schedule property. Further, there was no proof primafacie to believe that the road in question was their common road. Assailing the said order, the petitioner preferred the C.M.A. before the Principal District Judge, Vizianagaram, which was dismissedobserving that it was doubtful whether the width of the eastern endroad was 30 feet or 15 feet, which could be decided in the suit only,whereby the petitioner’s title was not established prima facie.

4. Heard.

5. Learned counsel for the petitioner has submitted that thepetitioner purchased 700 Sq. yards of site i.e., the suit property fromone Yagati Vishnu under a registered Sale deed dated 16.12.2005. The respondents, who have got site adjoining the property, without anymanner of right, have been trying to interfere with his peacefulpossession and enjoyment of the suit property. Further, as per Ex.A.2original Sale deed executed in favour of the petitioner, there is a 30feet road in between, whereas as per Ex.B.1, which is a Certified Copyof Sale deed, it is a 15 feet road. In fact, in the document filed by therespondents, there has been interpolations. Further, the Court belowhaving observed the ambiguity, failed to grant the relief as prayed for. Hence, it is necessary to take measures in that context. Further, therespondents have been making constructions beyond their site with alength of 60 ft. upto 100 ft., which cannot be permitted.

6. Learned counsel for the respondents has submitted that thewidth of the road given in Ex.B.1 is correct, by reason of which thepetition filed by the petitioner is not maintainable and is liable to bedismissed.

7. Having gone through the order passed by the courts below, it isclear that as there is ambiguity with regards to the width of the road asmentioned in Ex.A.2 and Ex.B.1, the Courts below could not upholdthe plea of the petitioner. In fact, in both the documents there arecorrections. At this stage it is difficult to say whether the width of theroad mentioned either in Ex.A.2 is correct or that mentioned in Ex.B.1is correct. Therefore, the matter requires to be remanded to the court below for the purpose of appointing an advocate-commissioner to fixthe identity of the road or the two properties reference to relevantauthenticated documents taking help from a qualified Surveyor.

8. Accordingly, the orders passed by the courts below are set asideand the matter is remanded to the trial court (Principal Junior CivilJudge, Vizianagaram) to take steps for appointing an advocate-commissioner on an application filed by the petitioner (plaintiff) and to direct the advocate-commissioner to visit thesuit schedule locality and fix the boundaries of the road and theproperties, taking help from a qualified Surveyor.

The Court below (Principal Junior Civil Judge, Vizianagaram) isdirected to dispose of the interlocutory petition within one month fromthe date of receipt of a copy of this order. In the meanwhile, therespondents are directed not to make any constructions on the road. Ifany constructions are made on the road, they are to be removed asthere is no dispute that they got no right exclusively over the road. Noorder as to costs.

Miscellaneous Petitions pending, if any, in this Civil RevisionPetition shall stand closed.

31[st] December, 2012Anr

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G.KRISHNA MOHAN REDDY, J

HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

Anr

CIVIL REVISION PETITION No. 1382 of 2012

Date: 31.12.2012