Telangana High Court
CRP/4078/2014 of Goka Ramesh Vs Kola Satyanarayana on 30 December 2015
SRI JUSTICE A.RAMALINGESWARA RAO CIVIL REVISION PETITION No.4078 of 2014 ORDER: Heard the learned counsel for petitioners and the learned counsel for respondents. 2. Defendants 2 to 6 in O.S.No.1838 of 2004 on the file of the Court of II Additional Junior Civil Judge, Warangal (for short,
THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO
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ORDER:
CIVIL REVISION PETITION No.4078 of 2014
Heard the learned counsel for petitioners and the learned counselfor respondents.
2. Defendants 2 to 6 in O.S.No.1838 of 2004 on the file of the Court ofII Additional Junior Civil Judge, Warangal (for short, trial Court) are thepetitioners herein. Respondents 1 and 2 herein filed the said suit againstpetitioners and respondents 3 to 7 herein for permanent injunction inrespect of an extent of Ac.3-12 guntas of land in survey No.144/A and144/B, situated at Urus Shivar Village, Warangal Mandal and District. Before filing the said suit, the petitioners herein filed O.S.Nos.1727 to1731 of 2004 on the file of the Court of the Principal Junior Civil Judge,Warangal in respect of individual plots of land possessed by them. Nowall the suits were clubbed together.
3. After ten years of filing the present suit i.e., O.S.No.1838 of 2004,respondents 1 and 2 herein, who are the plaintiffs, filed I.A.No.54 of 2014seeking amendment of the plaint for mandatory injunction directing thedefendants (petitioners and respondents 3 to 7 herein) to remove the fivesingle rooms with compound wall constructed over part of the scheduledproperty on the ground that during the pendency of the suit, thedefendants made constructions in a part of the scheduled property. Petitioners herein filed a counter stating that they already filed separatesuits for injunction in O.S.Nos.1727 to 1731 of 2004 in respect of theirrespective house plots situated in survey No.143/D of the same village. They denied the encroachment of the land of respondents 1 and 2 andstated that the proposed amendment would change the nature of thesuit. Respondents 1 and 2 herein lead their evidence as defendants inthe said suits and cross-examination of D.W.1 was completed on20.11.2008.
4. The trial Court, by order dated 25.09.2014, allowed I.A.No.54 of2014 on the ground that the amendment would not cause any prejudice tothe petitioners herein. The trial Court observed that if the plaintiffs fail toprove their claim after full-fledged trial, they will not be entitledfor permanent injunction, much less, the relief of mandatory injunction. Challenging the said order, the present Civil Revision Petition is filed.
5. In view of the allegation made by respondents 1 and 2 herein anddenial of the encroachment by the petitioners herein, the title of theparties has to be decided, if the relief of mandatory injunction is asked. The original suit was filed only for permanent injunction and the title inthe said suit will be considered only incidentally. If the plaintiffs areaggrieved and are claiming title in respect of the encroached partition,they are at liberty to file a separate suit for recovery of possession basedon the title. In the affidavit filed in support of the proposed amendment,they did not indicate the details of the extent of land alleged to have beenencroached by the defendants and the said amendment was filed afterten years of filing the suit for permanent injunction.
6. In the circumstances, the trial Court committed an error in allowingI.A.No.54 of 2014 and hence the order of the trial Court dated 25.09.2014in I.A.No.54 of 2014 in O.S.No.1838 of 2004 is set aside. The CivilRevision Petition is, accordingly, allowed. No order as to costs. Miscellaneous Petitions, if any pending, shall stand closed.
Date: 30.12.2015TJMR
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A.RAMALINGESWARA RAO, J