IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SIXTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.3183 of 2009 BETWEEN: Bangaru Subba Rao and four others. ... PETITIONERS AND Bangaru Ragavendra Arya and another. ...RESPONDENTS Counsel for the Petitioners : MR. B. NARASIMHA SHARMA Counsel for the Respondent No.1: MR. M.V.S. SURESH KUMAR The Court made the following: ORDER: The judgment debtors in O.S.No.59 of 1980 are the revision petitioners and they are aggrieved by the dismissal of their application in E.A.No.316 of 2007. The said application was filed by the judgment debtors under Section 47 read with Order 39 Rules 1 and 2 and Section 151 of the Code of Civil Procedure, 1908, seeking the following prayer: “to decide the property which has to be delivered to the first respondent under the decree by examining the documents and other evidence available on record and to pass appropriate orders and costs of the petition.” 2. For the sake of convenience, the petitioners are referred to as judgment debtors and the respondents are referred to as decree holders, as they are arrayed in the Court below. 3. In order to appreciate the contentions on either side, it is necessary to notice some of the facts, as this case has a chequered history. The brief facts, narrated below, are taken from the previous legal proceedings, though all these aspects are not stated in the affidavit filed in support of the present EA. (a) The third judgment debtor has sworn the affidavit in support of E.A.No.316 of 2007. He states that the fourth judgment debtor is his mother and other judgment debtors are his sisters. It is stated that all of them were in possession of the schedule property for about 60 years. The original judgment debtor and the original decree holder are brothers and their father Mr. B. Narasimha Rao died intestate in 1964. The joint family owned a house, a shop in the main road and vacant site at Palakole. The sisters executed a registered document relinquishing their share and the original judgment debtor and decree holder i.e. brothers along with their mother divided the movables as well as the immovable properties under a deed of partition engrossed on a stamp paper dated 15.10.1975. But it appears that original judgment debtor did not cooperate and the registration was initially refused by the Sub-Registrar on 12.01.976. Thereupon, the original decree holder/plaintiff filed an appeal and as per the appellate Court’s order the said partition deed was registered on 14.11.1979. As per the original decree holder/plaintiff, the original judgment debtor was residing in the suit schedule house, which fell to the share of the decree holder and thereupon, the proceedings for possession were taken by the plaintiff by issuing registered notice date 22.01.1980 for implementation of partition and it was followed by a suit for recovery of possession of schedule property together with damages. In the said suit, the trial Court found the partition deed dated 15.10.1975 as true and valid and decreed the suit and the said decree was affirmed by the learned single Judge in A.S.No.35 of 1988. The first defendant/judgment debtor, thereafter, filed L.P.A.No.80 of 1998, which was dismissed by a Division Bench of this Court under judgment dated 06.07.2006. For execution of the said decree, the respondents/decree holders filed E.P.No.73 of 2006 in which the judgment debtors filed E.A.No.316 of 2007, which is the subject matter of this revision. (b) One of the primary contentions raised by the judgment debtors is that the EP schedule property, which is appended to the decree in O.S.No.59 of 1980, referred to above, is as follows: SCHEDULE West Godavari District, Palakole Sub-Registry, Palakole, terraced building corresponding to D.No.14-3-79 situated in 9th ward of Palakole, Area 321-139 sq. yds. EAST : Rangamannar Peta Main Raod. WEST : Nouduri Venkata Satya Somayajulu’s house. NORTH : Bangaru Saradchandrababu’s building. SOUTH : Rangamannarpeta 1st cross road. According to the petitioners/judgment debtors, therefore, the above schedule relates to only D.No.14-3-79 having an area of 321.139 sq. yards. It is the case of the judgment debtors that though the said decree is regarding only the aforesaid house admeasuring 321.139 sq. yards, the respondents/decree holders are seeking delivery of another building bearing D.No.14-7-8 in an extent of 229 sq. yards also. The judgment debtors, therefore, contended that only one item is the subject matter of the decree, as extracted above, and the second item, as shown above, cannot be recovered under the aforesaid E.P.No.73 of 2006. According to the judgment debtors, therefore, though the decree is passed based on the partition deed dated 15.10.1975 covering two house properties, the decree holders filed a suit only regarding item 1, which was decreed, but not for item 2 and under the guise of the said decree they cannot take possession of item 2. (c) Meanwhile, the on the decree holder’s application in E.P.No.73 of 2006, the executing Court passed an order dated 11.06.2007, after hearing both sides, that as the property is described by distinct boundaries, the mistake in survey number or other number of the property has to be ignored in view of the decision of this Court in Y. SUBBA RAO V. AZIZUNNISA BEGUM [1985 (2) APLJ 48] and accordingly, directed fresh delivery of warrant to the Bailiff, who was required to follow the specific boundaries shown in the decree schedule and if he found any property of the judgment debtor on Western side that also be delivered till the Western side house of Nouduri Venkata Satya Somayajulu’ s house. The aforesaid order of the executing Court in E.P.No.73 of 2006 was not challenged by the judgment debtors, but they have filed the present separate E.A.No.316 of 2007, with the allegation that the decree holders are not entitled to possession of item 2, which is described as building bearing D.No.14-7-8 admeasuring 229 sq. yards. (d) The executing Court on consideration of the entire material came to the conclusion that it cannot go beyond the decree and the judgment debtors’ application under Section 47 CPC has to be considered under a very narrow compass. Both parties had led evidence in support of EA i.e. P.Ws.1 to 3 were examined on behalf of the judgment debtors and Exs.A1 to A4 and Exs.C1 and C2 were marked whereas no oral evidence on the part of the decree holders was adduced except marking Ex.B1. Keeping in view, the Western boundary as per the decree schedule as Nouduri Venkata Satya Somayajulu’s house, the entire property to the east of the said house is the subject matter of the decree and therefore, came to hold that under Section 47 CPC there is nothing in the decree, which can be interfered with in the execution proceedings, as the property to be proceeded against is clearly defined as per EP schedule. 4. Mr. B. Narasimha Sharma, learned counsel for the judgment debtors, specifically contends that while the decree is with respect to one house, the decree holders are seeking possession of one more house, which is impermissible. Learned counsel has brought to the notice of this Court the original decree, as noticed above, and the EP schedule, which contains two items of house properties, as mentioned above. He, therefore, submits that the house bearing D.No.14-3-79 admeasuring 321.139 sq. yards is alone the subject matter of the decree and there cannot be any execution petition beyond the said specified property. He, therefore, submits that the executing Court committed error in not appreciating the judgment debtors’ application being E.A.No.316 of 2007. 5. Mr. M.V.S. Suresh Kumar, learned counsel for the decree holders, on the contrary, submitted that though the original judgment debtor and the original decree holder are brothers and they had partitioned the properties as per registered partition deed dated 15.10.1975, the suit schedule property, which has fallen to the share of decree holder, being in possession of judgment debtors, the decree holder had to fight a long drawn litigation in O.S.No.59 of 1980 up to the stage of Letter Patent Appeal No.80 of 1998 and after succeeding in all the Courts, now untenable objections are being raised in the execution petition. Learned counsel also states that in none of the litigations aforesaid, the objection, as raised now, was raised by the judgment debtors. According to the learned counsel, while the plaint schedule house fell to the share of decree holder, the vacant site of JT road fell to the share of first judgment debtor apart from a shop in the main road in Palakole. He also submitted that in the EP filed by the decree holders, the judgment debtors earlier had filed E.A.No.384 of 2006 for appointment of Commissioner by contending that only one house property of 321.139 sq. yards being the subject matter, that alone can be delivered possession of. The said EA was dismissed by the executing Court on 28.10.2006 and against which the judgment debtors filed CRP.No.5479 of 2006 before this Court contending that two items of the property cannot be delivered in execution of decree. This court by order dated 05.03.2007 dismissed the revision petition. Thereafter on 11.06.2007 the executing Court passed an order issuing delivery of warrant to the Bailiff, which order is referred to in the paragraph 3(c) above. As mentioned above, while the said order dated 11.06.2007 is not questioned but a fresh application being E.A.No.316 of 2007 is filed with which presently we are concerned. It is also stated that the judgment debtors also filed another application through the children of fourth judgment debtor as E.A.No.292 of 2007 claiming that paternal grand mother - second defendant in the suit executed a will dated 18.12.1996 having life interest in the property and after her, the children of fourth judgment debtor are entitled to the property. The said application is still pending before the executing Court. 6. In the background of this chequered history, the questions, which fall for consideration, are whether the contention of the judgment debtors in E.A.No.316 of 2007 is sustainable and whether the impugned order of the Court below dismissing E.A.No.316 of 2007 warrants interference. 7. There is no dispute with regard to the decree schedule, which is extracted in the opening paragraphs of the judgment. The controversy is only with respect to structures within the Western boundary, which is described as the house of Mr. Nouduri Venkata Satya Somayajulu. There is no controversy with regard to the Eastern, Northern and Southern boundaries. According to the judgment debtors, the decree is only with respect to one house property bearing D.No.14-3-79 admeasuring 321.139 sq. yards whereas according to the decree holders the suit schedule refers to the property enclosed by the boundaries aforesaid on all four sides. It appears from the record that in addition to the house bearing D.No.14-3-79, which is referred to in the decree schedule, to the East of Nouduri Venkata Satya Somayajulu’s house their exists another house, which bears Municipal No.14-7-8 admeasuring 229 sq. yards. The question, therefore, is whether the other house, as above, is also the subject matter of the decree and consequential execution. It is also apparent that the house bearing D.No.14- 3-79 referred to in the decree schedule is not the only house covered by the boundaries aforesaid. The schedule also shows that the decree schedule property is specified within the boundaries, as mentioned, and it is not as if that the suit is for recovery of possession of only house bearing No.14-3-79 admeasuring 321.139 sq. yards. The schedule appended to the decree, therefore, is ambiguous in not mentioning the door number of other house also, which is situated within the said boundaries. This aspect, however, was not raised by the judgment debtors at any time in the suit, appeal or LPA. They have also not questioned the order of the executing Court dated 11.06.2007, which was passed on the principle enunciated by this Court in Y. SUBBA RAO’s case referred to above that the boundaries prevail when there is mistake in the survey number of the land. 8. However, the order in CRP.No.5479 of 2006 dated 05.03.2007 is confirmed by the dismissal of the review petition by order dated 31.07.2007, which rejected the self-same contention of the judgment debtors and the said orders have attained finality. More importantly, it is authoritatively laid down by the Supreme Court in P. UDAYANI DEVI v. V.V. RAJESHWAR PRASAD RAO[1] that irrespective of name and number of the property given in a sale certificate, the boundaries of the property mentioned in the sale certificate are conclusive of the property sold therein. Para 7 of the said judgment, which is extracted hereunder, would fully answer the contentions of the learned counsel for the judgment debtors. “7. We find considerable substance in this contention. The position in law is well settled that “certificates of sale are not documents of title which ought not to be lightly regarded or loosely construed.” [See: Rambhadra Naidu Vs. Kadiriyasami Naicker, (191) 48 Ind App 155 : (AIR 1922 PC 252) In Sheodhyan Singh vs. Musammat Sanichara Kuer (1962) 2 SCR 753 : (AIR 1963 Sc 1879) in the sale certificate the boundaries as well as the plot number were mentioned but there was a mistake in mentioning the plot number. It was held: “The matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are s in this case, the mistake in the plot number must be treated as mere misdescription which does not affect the identity of the property.” 9. Similar view was also expressed by this Court in IRRUVURU RAMACHANDRA REDDY v. KOPPALA BHUSHANAM[2]. Para 10 thereof is also relevant, which is extracted hereunder: “10. There is no dispute that the boundaries of the suit schedule property, on physical verification, tallied with those mentioned in Ex.A-3. The Trial Court made a mountain out of a mole, in relation to the so-called discrepancy in the eastern boundary. In Ex.A-3, the boundary was mentioned as a lane, whereas in Ex.C-4 and C-5, prepared by PW-4, it was shown as a Panchayat road. Hardly, there exists any discrepancy, since all the roads and lanes in a village, vest in the Gram Panchayat. As regards the other three boundaries, there is no dispute. It is settled principle of law that wherever the boundaries of a property tally, the discrepancy as to survey numbers or even extent become immaterial. In this context, reference may be made to the judgment of the Supreme Court in Sheodyan Singh v. Sanichara Kuer [AIR 1963 Sc 1879] in that case also, the boundaries of the suit schedule, on the one hand, and those mentioned in the concerned title deed, tallied, but there was discrepancy as to survey numbers. The actual survey number was 1060 and the one mentioned in the sale deed was 160. On facts, it was found that the Sy.No.160 does not exist at all. The Khata of the vendor was verified and he was found to be the owner of the land in Sy.No.1060. The Supreme Court held that such a discrepancy does not defeat the title.” 10. In the light of the said legal position well settled, I am unable to appreciate the contentions of the learned counsel for the judgment debtors that item 2 in the EP schedule cannot be delivered to the decree holders for more than one reasons, as mentioned above, therefore, the order impugned deserves to be sustained. The civil revision petition is liable to be dismissed and is accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J August 6, 2010 DSK [1] 1995 (2) APLJ 5 [SC] [2] 2006 (6) ALD 140