Karedla Parthasaradhi vs Gangula Ramanamma (D) Thr. Lr. And Ors

4. In order to appreciate the controversy involved in this appeal, it is necessary to state the relevant facts in brief infra.

5. The dispute relates to house bearing No. RS 233/1 situated in an area called "Gunadala" within the Municipal Corporation limits of Vijayawada, bearing door No.2/172 (Old Assessment No.225), new No.37687 (described in detail in the schedule attached to the plaint) (hereinafter referred to as "the suit house").

6. One Karedla Satyanarayna purchased the suit house by registered sale deed dated 15.12.1975 from one Smt. Abdul Amina Bee and her sister. At the time of purchase, there was only a tiled house. Subsequently he reconstructed the suit house. He died intestate on 19.12.1983. On his death, the plaintiff (appellant herein), who is real brother of late Karedla Satyanarayna, claimed that the suit house has devolved upon him along with his sister (defendant no. 2) in equal share being Class II (II) (3) (4) heirs as specified in the Schedule appended to the Hindu Succession Act, 1956 (in short "the Act"). However, the plaintiff could not get possession of the suit house because he noticed that defendant no. 1 was claiming herself to be in its possession and declined to vacate the same when demanded by the plaintiff. The plaintiff also noticed that defendant no. 1 had been asserting her ownership rights over the suit house after the death of Satyanarayana as his wife. Therefore, on 20.10.1984, the plaintiff served a legal notice to defendant no. 1 calling upon her to vacate the suit house and handover its possession to the plaintiff.

7. Since defendant no.1 did not vacate the suit house despite service of notice to her, the plaintiff filed a suit for eviction against defendant no. 1 (respondent no. 1 herein) in the Court of IInd Additional Subordinate Judge, Vijayawada. The suit was founded on the allegations inter alia that on the death of K. Satyanarayana, the suit house devolved upon the plaintiff being his brother as provided under Section 8 read with Class II (II) (3) of the Act. It was alleged that defendant no.1 was employed by K. Satynarayana to cook his food. It was alleged that since K. Satyanarayana was a bachelor, he had allowed defendant no. 1 to stay in the suit house as its caretaker and also because he used to be mostly on tour to various places being an active member of the Viswa Hindu Parishad. It was alleged that defendant no. 1 had neither any ownership nor any tenancy rights over the suit house. It was further alleged that even as a servant, she had no right to remain in the occupation of the suit house and in any event, after K. Satyanarayana's death, the so-called contract of employment between her and K. Satyanaryana having come to an end, her permissive possession in the suit house had become unauthorized and was that of the trespasser qua its real owner - the plaintiff. The plaintiff, therefore, claimed a decree for possession of the suit house and damages at the rate of Rs.1000/- per month for its wrongful use from defendant no 1. The plaintiff also arrayed his sister as proforma defendant no. 2 without claiming any relief against her.

8. In answer to the plaint, defendant no. 1 filed her written statement. While denying the plaintiff's case, it was alleged that she was legally married wife of K. Satyanarayana and was living with him since decades in the suit house. It was alleged that after Satynarayana's death, she became the sole owner of the suit house by virtue of law of inheritance being a class-I heir i.e., wife. It was alleged that she invested her own money in renovation of the suit house, got her name mutated in the Municipal records as its owner and paid municipal taxes. It was thus contended that her possession over the suit house is on the strength of the ownership and hence cannot be disturbed.

23. We, therefore, find no good ground to reverse the finding though assailed by the appellant and uphold the same and accordingly hold that defendant no.1 (late Gangula Ramanamma) was legally married wife of late K. Satyanarayana.

27. Keeping in view the abovesaid principle of law and applying the same to the facts of this case, we are of the considered opinion, the High Court committed an error of law when it proceeded to allow the application filed by K. Sanjiva Rao (respondent no.1) under Order XXII Rule 4 ibid by its order dated 19.12.2008, for more than one reason mentioned hereinbelow.

30. In the light of foregoing discussion and as rightly argued by the learned senior counsel for the appellant, the order dated 09.10.2000 allowing the application filed by K. Sanjiva Rao under order XXII Rule 4 of the CPC is not legally sustainable and hence deserves to be set aside.

31. Now in such situation arising in a case, we have two options. First, to remand the case to the High Court which in turn will remand the case to the trial court to decide the application filed by K. Sanjiva Rao under Order XXII Rule 4 as provided in proviso to Order XXII Rule 5 of the CPC and depending upon the inquiry report, will decide the appeal and second, this Court should retain the session of this appeal to itself and remand the case to the trial court as provided under Order XLI Rule 25 read with Order XXII Rule 5 proviso for holding an inquiry and on receipt of the finding, finally decide the appeal in the light of finding so recorded by the trial court.

35. Let the inquiry be held by the trial court after affording an opportunity to all parties concerned to file reply to application and adduce evidence in addition to evidence already led in suit and reasoned findings be returned to this Court within three months along with documents and evidence led in the inquiry proceedings.

36. The Registry to remit the record of the trial court and that of the High Court in relation to this case to the concerned trial court forthwith to enable the trial court to hold the inquiry and submit the report as directed within the time fixed.

37. Let the appeal be listed for hearing on receipt of finding from the trial court.

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