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CHEQUE BOUNS CASE

When both the parties have filed pahanies for the year 2008-2009. Unless their authenticity is verified during the trial of the suit, it is not possible for the lower Court to render a finding, prima facie or otherwise, with respect thereto. As each party is claiming that he/she is in physical possession of the suit property, it is appropriate that they maintain status quo as on today with respect the same. This shall necessarily mean that whoever is in physical possession of the suit property shall be allowed to continue in possession till disposal of the suit. The lower Court is directed to dispose of the suit within a period of three months from the date of receipt of this order.

The Bhadrachalam Temple.

The Bhadrachalam Temple. (Photo credit: Wikipedia)

HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY

C.R.P.No.273 of 2010

19-1-2012

Maloth Veeru @ Heeralal and others

Guguloth Mangi w/o. Balu

Counsel for petitioners: Sri M. Rajamalla Reddy

Counsel for respondent : Sri P.V. Ramana

ORDER:
The petitioners, who are the defendants in O.S.No.108/2009 filed by the
respondent, filed this Civil Revision Petition feeling aggrieved by the order
dated 23-12-2009 in I.A.No.146/2009 in O.S.No.108/2009 on the file of the
learned Sub-Divisional Magistrate (Mobile Court), at Bhadrachalam (for short
“the lower Court“).
The petitioners and the respondent have competing claims with respect to Ac.0-26
guntas of land in Chunchupalli village, Kothagudem Mandal, Khammam District (for
short “the suit property”). While it is the case of the petitioners that they
have become the lawful owners of the suit property having purchased the same
under registered sale deed dated 19-8-2009 executed by its lawful owner, the
respondent pleaded that it is her self-acquired property and that she is in
possession of the same. In support of the plea of the respondent, she has filed
pahanies from the years 1999-2000 upto the year 2008-2009. The petitioners have
also filed pahani for the year 2008-2009. The lower Court has called for report
dated 15-12-2009 from the Tahsildar and has placed reliance on the same in
addition to placing reliance on the pahanies submitted by the respondent in
coming to the conclusion that the respondent is in possession of the suit
property. Even though it is the case of the petitioners before this Court that
the lower Court has failed to consider the pahani for the year 2009-2010,
unfortunately as no documents have been marked on either side by the lower
Court, it is not possible to accept this plea of the petitioners.
Be that as it may, from a perusal of the order under revision, I am of the
opinion that the lower Court has committed a fundamental error in calling for
the report from the Tahsildar and placing reliance on the same. The lower Court
is discharging the functions of a Civil Court in the Agency Areas. Placing
reliance on a report without summoning its author and examining him is something
alien to the procedure before a Civil Court. If the lower Court felt the
necessity of eliciting the opinion of the Tahsildar regarding physical
possession of the suit property, the appropriate course for it would have been
to summon the Tahsildar and examine him as a Court witness. Such a procedure
would have ensured that opportunity is given to both the parties to cross-
examine such witness. By calling for a report from the Tahsildar and placing
reliance thereon without giving an opportunity to the petitioner to cross-
examine the Tahsildar, the lower Court has committed a serious jurisdictional
error. It has also committed another serious error in rendering a prima facie
opinion that No.3 pahani extract produced by the petitioners for the year 2008-
2009 is a created one. No reasons whatsoever have been assigned by the lower
Court in giving such a prima facie finding. The said finding, therefore, is
wholly unsustainable.
The facts noted above would show that both the parties have filed pahanies for
the year 2008-2009. Unless their authenticity is verified during the trial of
the suit, it is not possible for the lower Court to render a finding, prima
facie or otherwise, with respect thereto. As each party is claiming that he/she
is in physical possession of the suit property, it is appropriate that they
maintain status quo as on today with respect the same. This shall necessarily
mean that whoever is in physical possession of the suit property shall be
allowed to continue in possession till disposal of the suit. The lower Court is
directed to dispose of the suit within a period of three months from the date of
receipt of this order.
Subject to the above directions, the Civil Revision Petition is disposed of.
As a sequel, CRP.M.P.No.409/2010 is disposed of as infructuous.

________________________
Justice C.V. Nagarjuna Reddy
Date : 19-1-2012

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