THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5528 of 2009 (Dated 01-12-2009) Between: Chembeti Venkayamma W/o Sankar Rao, R.Agraharam, Guntur …Petitioner A n d Tammisetti Sankar Rao S/o Venkata Ratnam and others ….Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5528 of 2009 ORDER: This Civil Revision Petition is directed against the order dated 22.10.2009 passed in E.A.No.28 of 2004 in E.P.No.11 of 2003 in R.C.C.No.70 of 1992 on the file of the Rent Controller-cum-Principal Junior Civil Judge, Guntur, whereby and whereunder, the learned Prl. Junior Civil Judge dismissed the application filed by the petitioner herein under Order XXI, Rule 97 & 101 and Section 151 of Code of Civil Procedure and Rule 23(7) of A.P. Buildings (Lease, Rent & Eviction) Control Rules. 2. Background facts, in a nutshell, leading to filing of this revision by the third party to the proceedings in E.P.No.11 of 2003 in R.C.C.No.70 of 1992 are: - The 1st respondent-Tammisetty Sankara Rao filed R.C.C.70 of 1992 against the 2nd respondent herein-Chembeti Ankamma under Section 10(i) (iv) of A.P. Buildings (Lease, Rent & Eviction Control) Act, 1960 for his eviction from the RCC schedule mentioned property. The said R.C.C 70 of 1992 came to be dismissed on 8.9.1995. Aggrieved thereby, the 1st respondent preferred R.C.A.No.46 of 1995 on the file of the Principal Senior Civil Judge, Guntur. The said appeal came to be allowed directing the 2nd respondent to vacate the petition schedule property within two months. Thereafter, the 1st respondent died and his legal representatives came on record. They filed E.P.No.11 of 2003 for execution of the decretal order passed in R.C.C.No.70 of 1992. While so, the petitioner herein filed E.A.No.28 of 2004 under Order XXI Rule 97 & 101 and Section 151 CPC and Rule 23(7) of A.P. Buildings (Lease, Rent & Eviction) Control Rules alleging inter alia that she has been in occupation of the premises as a licensee from the temple authorities of Ankamma Talli Devara, and therefore, she is not bound by the eviction order passed in R.C.C.No.70 of 1992. 3. The respondents 1 and 2 filed counter resisting the application. The 1st respondent took the plea in the counter that earlier a suit, being O.S.No.77 of 1992, has been filed claiming the property as that of Ankamma Talli Devara and that the said suit ended in dismissal on 21.7.2005 holding that Tammisetti Sankara Rao-1st respondent is the absolute owner of the R.C.C schedule property. It is further stated in the counter that the petitioner has been set up by the 2nd respondent. The petitioner examined two witnesses as Pws.1 and 2 and marked two documents as Exs.A-1 and A-2 on her behalf, and whereas the respondents 3 and 4 examined one witness as Rw-1 and marked four documents as Exs.B-1 to B-4 on their behalf. The executing Court formulated the following points for consideration: “ 1) Whether the petitioner is a tenant and she can raise objection under the claim petition? 2) Whether the objection raised by the petitioner is maintainable under Order XXI, Rule 97 and 101 of C.P.C? 3) Whether the respondents 3 and 4, who are the legal heirs of 1st respondent (D.Hr) are entitled for delivery of vacant possession of the petition schedule? 4) To what relief?” 4. The executing Court, on considering the material brought on record and on hearing the counsel appearing for the parties, recorded a finding that the petitioner is not a tenant in the R.C.C schedule property and if any possession is claimed by the petitioner, such possession can be treated as that of an encroacher and she has been set up by the 2nd respondent. 5. For better appreciation, I may refer the relevant portion of the order, which reads as hereunder: “As per Rule 97(1), it is clear that a person who is claiming the property as a decree holder or purchaser in execution proceedings if such a person is obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining such resistance or obstruction. In this petition, the petitioner is neither a decree- holder nor purchaser of the property sold in execution of a decree as envisaged under Rule 97(1). Therefore, Rule 97 is not applicable to the petitioner as a claimant or obstructer and Rule 101 is meant for to determine all questions arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application, etc. So that, Rule 101 is meant for to determine the disputes arise between the parties under Rule 97 or Rule 99 and Rule 99 is dispossession by decree- holder or purchaser. Therefore, Rule 99 is also not applicable to the petitioner, because he is not a decree-holder or purchaser. So, viewed in any angle, Order XXI, Rule 97, 99 & 101 is not applicable to the petitioner to raise any objection as a claimant. So, on the face of it, this petition is not maintainable by raising any objection by questioning the decree in R.C.C.70/1992. Therefore, the petitioner cannot raise any objection as a claimant under Order XXI, Rule 97, 99 & 101 and so also as contended by the counsel for respondents 3 and 4 (L.Rs of 1st respondent/D.Hr) absolutely there is no evidence on record that the petitioner/claimant is a tenant in the petition schedule by paying any rent. At best, the evidence on record shows that the petitioner is an occupier of the petition schedule under the guise of looking after the care of the temple. Therefore, the petitioner is not a tenant in the petition schedule and if any possession is claiming by the petitioner, such possession can be treated as an encroachment and as contended by the counsel for respondents 3 and 4 (L.Rs of D.Hr), there is every possibility of set-up the petitioner as a tenant in the petition schedule to cause obstruction to enjoy the fruits in E.P.11/2003 by the D.Hr. In these circumstances, it can be construed that the petitioner is not a tenant in the petition schedule and she is no way concerned by questioning the judgment and decree in R.C.C.70/1992 and so also she is not entitled for any relief by raising any objection as a claimant under Rule 87 & 101. Therefore, the petitioner has no voice to question the judgment and decree in R.C.C.70/1992 and so also she has no voice to question the landlord and ownership of the respondent/D.Hr. So, filing of this petition under Order XXI, Rule 97 & 101 of Code of Civil Procedure itself clearly shows that it is a vexatious petition by raising untenable objection without any manner of right. So, the petitioner is not entitled to raise any objection or claim any right over the petition schedule as a tenant. Accordingly, all the points are settled.” 6. The order passed in E.A.No.28 of 2004 is assailed in this revision. 7. Heard learned counsel appearing for the petitioner and perused the order impugned in the revision. 8. Learned counsel appearing for the petitioner submits that the application filed by the petitioner under Rule 23(7) of A.P. Building (Lease, Rent & Eviction) Control Rules, 1961 is maintainable. In support of his contention, he placed reliance on the judgment of this Court in Arastu Talimi Trust v. Syed Shah[1]. 9. The 1st respondent herein filed R.C.C.No.70/1992 against the 2nd respondent. The said R.C.C ended in dismissal and thereupon, the 1st respondent filed R.C.A.No.46 of 1995 and it came to be allowed granting two months time to the 2nd respondent to vacate the premises. It appears that a suit was filed claiming property as that of Ankamma Talli Devara temple and the said suit, being O.S.No.7 of 1992, ended in dismissal. 10. Ex.B-1 is the certified copy of the written statement filed by the 1st respondent-D.Hr. in O.S.No.77 of 1992 on the file of the I Additional District Munsif, Guntur. Ex.B-2 is the certified copy of the judgment in R.C.A.No.46 of 1995 on the file of the Prl. Senior Civil Judge, Guntur. The contention of the petitioner is that the property belongs to Ankamma Talli Devara temple and that she is a licensee of the temple authorities. No scrap of paper has been placed on record to show that she is licensee from the temple authorities. The executing Court, having taken note of the proceedings in the R.C.A and the suit, proceeded to observe that the petitioner failed to prove of her being a licensee over the R.C.C schedule mentioned property. The findings recorded by the executing Court are based on sound reasons. The said findings do not warrant interference of this Court in exercise of powers under Article 226 of the Constitution of India. 11. Accordingly, the Civil Revision Petition is devoid of merits and the same is hereby dismissed at the admission stage. No order as to costs. _____________________________ B.SESHASAYANA REDDY, J Dt.01-12-2009 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5528 of 2009 (Dated 01-12-2009) [1] 2000(6) ALT 619