*THE HON’BLE THE ACTING CHIEF JUSTICE B.PRAKASH RAO AND *THE HON’BLE MR JUSTICE R. KANTHA RAO +C.M.A.Nos.275/10, 333/10 & W.P.No. 20552/09 % Dated 24.11.2010 CMA Nos.275 & 333 of 2010: Between: # T.Venugopal and another …Appellants And $ Dr.Raghotham Dass and two others ….Respondents W.P.No.20552 of 2009: Between: # T.Venugopal …Petitioner And $ AVV Gopal Rao and four others ….Respondents ! Counsel for the petitioners: Mr.P.V,Sanjeeva Rao Mr.Mummaneni Srinivasa Rao ^ Counsel for the Respondents : Mr. Damodar Mundra Smt.M.Bhaskara Lakshmi G.P. for Home. <GIST: > HEAD NOTE: ? Cases referred THE HON’BLE THE ACTING CHIEF JUSTICE B.PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.Nos.275/10, 333/10 & W.P.No. 20552/09 Date: 24.11.2010 CMA Nos.275 & 333 of 2010: Between: T.Venugopal and another …Appellants And Dr.Raghotham Dass and two others ….Respondents W.P.No.20552 of 2009: Between: T.Venugopal …Petitioner And AVV Gopal Rao and four others ….Respondents THE HON’BLE THE ACTING CHIEF JUSTICE B.PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.Nos.275/10, 333/10 & W.P.No. 20552/09 COMMON ORDER: (Per Hon'ble Sri Justice R.Kantha Rao,J) Both the civil miscellaneous appeals and writ petition are between the same parties in respect of the same subject matter and the questions of fact and law arise for consideration being the same, all the three matters are disposed of by the following common order. The parties will be referred to as ‘petitioners and respondents’ in the same manner as they were arrayed in I.A.No.433 of 2009 in O.S.No.126 of 2009. The brief facts leading to filing of all the above mentioned cases may be stated as follows: One Hakeem V. Laxmandas was the absolute owner of open site of an extent of 123.10 square yards situate at Maharaj Gunj, Hyderabad. He constructed ground floor and first floor in the said premises which will hereinafter be referred to as ‘the schedule mentioned property’. According to the petitioners, their father was the tenant of the ground floor consisting of three mulgies and later he surrendered one mulgi and continued as tenant of the remaining two mulgies in the ground floor. The third respondent is another brother of the petitioners and he was assisting their father in his business. While so, the petitioners’ father died on 16.07.1998 leaving behind him both the petitioners and third respondent as his legal heirs and therefore, they say that they succeeded as tenants in respect of two mulgies in the ground floor of the schedule mentioned premises. It is also their contention that during his life time, their father purchased the semi-finished first floor from one Hakeem V.Laxmandas for a total consideration of Rs.85,000/- under a registered sale deed dated 01.12.1988. Subsequent to the sale deed, both the petitioners and the third respondent were in possession of the first floor in their own right. On the other hand, the first respondent claims to be entitled to the plaint schedule premises under a registered sale deed dated 17.03.1998 executed by Hakeem V.Laxmandas. The first respondent filed eviction petition in R.C.No.475 of 2000 before the II Additional Rent Controller, Hyderabad against the petitioners and the said petition was allowed. Subsequently, the first respondent sold away the entire schedule mentioned premises consisting of ground floor and first floor to the second respondent under a registered sale deed dated 06.10.2008. The first respondent disputed the alleged unregistered sale deed dated 01.12.1988 said to have been executed by Hakeem V. Laxmandas in favour of the father of the petitioners. According to him, the first floor portion was never in possession of the father of the petitioners and two mulgies in the ground floor were only in possession of third respondent as tenant. In the rent control proceedings eviction of the petitioners was ordered and the claim petition filed by the third respondent claiming the schedule mentioned property was also dismissed. The appeal preferred against the order of the Rent Controller in R.A.No.156 of 2002 on the file of the Chief Judge, Small Causes Court, Hyderabad was also dismissed. In C.R.P.No.6908 of 2005 filed by the third respondent, the learned single Judge of this Court held that both the Rent Controller as well as the appellate Court have found that the tenants have committed willful default, there is no illegality pointed out by the revision petitioner and therefore, there are no grounds to interfere with the eviction proceedings. In the same order, the learned single Judge of this Court directed the third respondent to give an undertaking before the trial Court that he should vacate the premises within a period of two weeks and hand over the same to the landlord and granted stay for only two weeks period. Accordingly, the third respondent gave an undertaking before the trial Court but did not vacate the premises. Thereafter, Contempt Case No.1347 of 2006 was filed by the petitioners and the learned single Judge of this Court passed an order directing the trial court to ensure that the possession is handed over to the petitioners in view of the undertaking given by the third respondent. Subsequently, the contempt case was closed considering the stand taken by the third respondent in para 5 of the counter- affidavit and the learned single Judge held that no further orders need be passed in the contempt case and accordingly closed the same. It is specifically stated that as per the undertaking given before the trial Court, he vacated the schedule mentioned premises bearing No.15-9-186/1 & 2, Maharajgunj, Hyderabad. It is mentioned therein that he was living in the portion purchased by his father in the year 1988 through a notarized deed through Hakeem V.Laxmandas for valuable consideration. The contention of the petitioners in civil miscellaneous appeals as well as the writ petition is that the respondents 1 and 2 though obtained an order of eviction in respect of the ground floor portion with Door No.15-9-186/2, Maharajgunj, Hyderabad by making false representation that the eviction is in respect of the entire petition schedule premises and ultimately got evicted the petitioners from the first floor premises and therefore, the eviction order insofar as the first floor premises is concerned has to be set aside. They sought to issue a writ of mandamus in W.P.No.20552 of 2009 declaring the action of the respondents in evicting the petitioners from the property bearing House No.15-9-186/1/1(first floor), Maharaj Gunj, Hyderabad as illegal, arbitrary and contrary to the orders passed by the courts below and confirmed by this Court. The only question, therefore arises for determination in these cases is whether the eviction was sought for and ordered in respect of the entire schedule mentioned premises i.e. ground floor and first floor or only in respect of the ground floor. The respondents 1 and 2 filed review petition I.A.No.3420 of 2009 before the II Additional Chief Judge, City Civil Court, Hyderabad to review the order passed by him in I.A.No.433 of 2009 dated 06.06.2009 on the ground that the eviction proceedings are in respect of the entire building including the first floor premises. The learned Additional Chief Judge made an enquiry into the said review petition filed under Order 47, Rule 1 of CPC and passed an order concluding that the eviction petition in R.C.No.475 of 2000 was filed in respect of the entire building including the first floor portion and the eviction order passed and confirmed was in respect of the entire building including the ground floor and first floor portions and the petitioners therefore cannot be said to be in possession of the first floor portion of the schedule mentioned building along with his brother, the third respondent. Holding as such, the learned Additional Chief Judge allowed the review petition. In C.M.A.No.1047 of 2009 a Division Bench of this Court while permitting the appellants’ counsel therein (petitioners) to withdraw the appeal and also accorded permission to file a review petition before the trial Court to explain the ambiguity regarding the identity of the subject matter of the dispute. Pursuant to the directions of the Division Bench, the review petition was filed by the petitioners and the same was decided on merits by the learned Additional Chief Judge as indicated above. Perusal of the sketch plan of the schedule mentioned property filed along with the eviction petition and its description in the petition clearly discloses that the eviction was sought for in respect of the ground floor and first floor of the schedule premises. If we go through the rival contentions in the eviction petition i.e. R.C.No.475 of 2000, the subject matter of the dispute is petition schedule mentioned property consisting of ground floor and first floor. In the claim petition E.A.No.51 of 2007 in E.P.No.13 of 2007 in R.C.No.475 of 2000 the petitioner contended that he is in possession of the petition schedule mentioned property in his own right, his father developed the petition scheduled property into a residential apartment by constructing five rooms, toilet and wall etc., he was born and brought up in the petition schedule property and during the course of cross- examination the claim petitioner (PW-1) admitted that the petition schedule property consists of two mulgies in rear side portion, W.C. and bathroom. PW-2 also admitted in the cross-examination that the petition schedule property consists of two mulgies in the rear side portion W.C. and bathroom on the first floor. Therefore, the claim petitioner claimed the rights in the entire schedule mentioned property and the said plea was rejected by the Rent Controller dismissing the claim petition. Ex.R-1, the certified copy of the order of eviction in R.C.No.475 of 2000 indicates that the eviction was ordered for the entire premises consisting of ground floor mulgies and the structures on the first floor and Ex.R-2, certified copy of the order in the appeal filed therefrom i.e. R.A.No.156 of 2002 shows that the order passed by the Rent Controller was confirmed and the rent appeal was dismissed without any modifications. Execution warrant, the direction issued by the Rent Controller to the police to assist the bailiff in executing the warrant for the delivery of the schedule mentioned property, the report of the bailiff and the panchanama annexed thereto clearly indicate that the warrant was to vacate the entire premises consisting of ground floor and first floor and the eviction was done by the bailiff in the presence of panchas with the assistance of the Police, Afzalgunj, Hyderabad. In fact, the identity of subject matter had never been in controversy and it was altogether a new plea raised by the appellants after they lost all the remedies and were ultimately evicted from the entire schedule mentioned premises. In fact, their claim from the beginning has been in respect of the entire premises which is evident from their counter in the eviction petition as well as the contents of their claim petition in the execution petition. Insofar as the writ petition is concerned, the dispute between the parties relates to their rights in respect of the property which can be investigated comprehensively in a civil suit or proceeding under the Rent Control Act. The writ in the nature of mandamus can be issued only when the right infringed is the right guaranteed under Part III of the Constitution (Fundamental Rights) or when there is no other appropriate and efficacious remedy is available to the parties. Here is a case wherein the civil rights of the parties are involved and the merits have to be decided only by examining the evidence in detail. Such an exercise cannot be done in a writ petition filed under Article 226 of the Constitution. In fact, the rights have been finally adjudicated upon by the courts of competent jurisdiction and the attempt of the petitioners to dislodge the said findings which have attained finality having recourse to writ jurisdiction is designed only to protract the litigation. The writ petition is therefore not maintainable and is liable to be dismissed. For the foregoing reasons, C.M.A.Nos.275 of 2010, 333 of 2010 as well as W.P.No.20552 of 2009 are dismissed with costs. _____________________________ THE HON’BLE THE ACTING CHIEF JUSTICE B.PRAKASH RAO _______________ R. KANTHA RAO, J Date:24-11-2010 Note: L.R.Copy to be marked. B/O ccm THE HON’BLE THE ACTING CHIEF JUSTICE B.PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.Nos.275/10, 333/10 & W.P.No. 20552/09 (Per Hon'ble Sri Justice R.Kantha Rao,J) DATE:24.11.2010