THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
CIVIL REVISION PETITION.No.1503 OF 2021
ORDER :
This Civil Revision Petition has been filed by the petitioner who is the plaintiff in O.S.No.32 of 2021 on the file of Principal Junior Civil Judge, Armoor, under Article 227 of Constitution of India against the order of the trial Court in I.A.No.279 of 2021 dated 13.09.2021 by which the trial Court appointed an Advocate Commissioner to conduct survey and measure the suit schedule property with the help of Assistant Director, Land Revenue and Survey Records.
2. The petitioner herein has filed main suit vide O.S.No.32 of 2021 for perpetual injunction in respect of land in survey No.295/39 of Babanagar of Nizamabad District. He has also filed an interlocutory application vide I.A.No.71 of 2021 and sought for temporary injunction in respect of the above referred suit schedule property. The respondents herein who are defendants in the main suit have filed a petition under Order 26 Rule 9 C.P.C. vide 2 CRP No.259 of 2021 I.A.No.279 of 2021 and sought for appointment of Advocate Commissioner for conducting survey and to measure the suit schedule property.
3. In support of the petition, 1st defendant in the main suit has filed his affidavit and averred that the boundaries of the suit schedule property in Sy.No.295/39 and the boundaries in Sy.No.295/39, 54 and 55 shown in the sketch map filed by the defendants are one and the same. The plaintiff has been claiming ownership over the property in Sy.No.295/39 by showing the said property abutting to road running from Kuppakal to Babanagar and according to the defendants, the land in Sy.No.295/39 is non- agricultural land. It is "orre" (rivulet or low lying area). Even if it is believed that in Sy.No.295/39 was assigned to the plaintiff it is not located by the side of the road. The plaintiff has nothing to do with the land in Sy.Nos.295/52, 54 and 55 which was kept for grazing cattle by the villagers of Babanagar. The plaintiff is an influenced person. He has kept an evil eye on the above land, and filed false suit to knock away the land covered in Sy.Nos.295/52, 54 and 55. He has filed false sketch map to mislead the Court as if the 3 CRP No.259 of 2021 suit property is located in Sy.No.295/39. The plaintiff having shown the suit survey number as 295/39 trying to knock the land covered by S.No.295/52, 54 and 55 which is a compact block to each other.
4. Therefore, to prove actual existence of the land, they sought for appointment of Advocate Commissioner who can be directed to measure the land with the help of Surveyor and to fix the boundaries.
5. The plaintiff has opposed the petition filed counter claiming that he has got exclusive right over the land in Sy.No.295/39. The petition filed by the defendants is not tenable under Law. The request made by them in the petition is beyond the purview of the Court. Since the plaintiff filed suit for perpetual injunction, the only question that assumes significance is whether the plaintiff is in possession and enjoyment of the suit property, the burden squarely rests upon the plaintiff to prove his possession. The appointment of Advocate Commissioner to note down the physical features or to undertake the other related activities in a suit for injunction is rarity. The parties cannot be permitted to gather evidence to prove 4 CRP No.259 of 2021 their possession and the party who came to the Court with a request for injunction has to satisfy the Court through oral and documentary evidence. The respondent/plaintiff has stated that the appointment of Commissioner at the instance of defendant is still a rare phenomenon. Therefore, such an appointment cannot be made at the threshold. Appointment of Commissioner to measure the property amounts to collection of evidence. Therefore, the plaintiff sought for dismissal of the petition.
6. Learned trial Court having heard both parties and having considered the record, allowed the application and appointed an Advocate as Commissioner to survey and measure the suit property with the help of Assistant Director, Land Revenue and Survey Records.
7. Being aggrieved by the said order, the petitioner has filed the present revision and challenged the order of the trial Court on the ground that the trial Court failed to appreciate the judgment relied on by the counsel for the plaintiff. The trial Court could not distinguish the prayer in I.A.No.279 of 2021 and I.A.No.71 of 2021. The Court below failed to appreciate that the grounds pleaded by the 5 CRP No.259 of 2021 defendants does not established the purpose of appointment of Commissioner for localization of the land in Sy.No.295/39 and lands in Sy.Nos.295/53, 55 and 56. Therefore, according to the plaintiff, such an appointment is ultimately without looking into the request assigned by the petitioner, thereby the plaintiff sought for setting aside the order.
8. Heard both parties.
9. Now the point for consideration is:
Whether the order of the trial Court suffers from any infirmity, if so, whether the same can be set aside while exercising the jurisdiction under Section 227 of Constitution of India.
10. POINT:
Learned counsel for the petitioner herein has submitted that the plaintiff has filed main suit for perpetual injunction and he supposed to prove his case by oral and documentary evidence. There is no responsibility or burden on the defendants to prove the claim of the plaintiff is baseless. If the plaintiff is not able to prove his 6 CRP No.259 of 2021 title, definitely, his suit will be dismissed. Therefore, the Court below committed an error in allowing the application filed by the defendants and appointed Commissioner for conducting survey which amounts to collection of evidence.
11. On the other hand, learned counsel for the respondents/defendants having placed reliance on judgment between Haryana Waqf Board vs Shanti Sarup and others reported in 2008 (8) SCC 671, Arvind Kumar Agarwal vs. Legend Estates (P) Limited in CRP No.3756 of 2014 from the Hon'ble High Court of Telangana and Andhra Pradesh and Rajendran vs Lilly Ammal @ Nelli Ammal and another in CRP No.1028 of 1997.
12. The main suit has been filed by the respondent/plaintiff for perpetual injunction in
Sy.No.295/39 of Babanagar Village. As per the schedule filed along with the plaint, the suit property is shown within the following boundaries :
North: Internal Road and then Land of Gundaiah South:Internal Road and then land of Sura Limbanna East :Internal Road West :Main Road 7 CRP No.259 of 2021
13. The plaintiff has claimed that he was a landless poor and Government assigned suit land to him and his name was entered in the revenue records. He has also pleaded in the plaint that he got the land surveyed with the help of Inspector of Survey and land records and got fixed the boundaries to this patta land.
14. The defendants have disputed the plaint averments, allotment of suit land and location of Ac.04-00 gts within the above referred boundaries. They have also claimed that the land in Sy.No.295/39 is a rivulet and people are using the said land for the cattle grazing. According to the defendants, the land in Sy.No.295/39 is not abutting to the road as claimed by the plaintiff and property shown in the above boundaries is in fact in Sy.Nos.295/52, 295/54, 295/56.
15. Therefore, even if it is accepted that the plaintiff was granted a patta for Ac.04-00 gts and if it is in Sy.No.295/39, it is necessary to note whether it exactly located within the boundaries shown in the plaint or whether it is situated in Sy.Nos.295/52, 54 and 56 as 8 CRP No.259 of 2021 alleged by the defendants. Therefore, the exact location of the property that was given to the plaintiff by way of alleged patta has to be ascertained. It is also required to know whether the land shown in the suit schedule i.e., within the four boundaries mentioned by the plaintiff is in Sy.Nos. 295/52, 54, 56 as claimed by the defendants. The defendants have claimed that the property described in the plaint schedule is actually a rivulet and it is a pastor land or being used for the purpose of grazing the cattle by all the villagers. The suit filed by the plaintiffs was for a perpetual injunction. It is true, the plaintiff is supposed to prove his title and possession on the property and there is no necessity for the defendants to disprove the claim of plaintiff. However, in view of the above peculiar circumstances, it is quite necessary to identify the property that is given to the plaintiffs and it is quite necessary to know whether the said Ac.04-00 gts is in Sy.No.295/39 and whether it is situated within the boundaries mentioned by the plaintiff. Similarly, it is quite necessary to locate the property and to identify whether it is a rivulet and within the Sy.Nos.295/52, 54 and 56. Even if a Commissioner is 9 CRP No.259 of 2021 appointed with a direction to locate this land i.e., to conduct survey with the help of tippon and tonch map, it may not be amounting to collection of evidence.
16. As per the pleadings of both parties, it is clear that the plaintiff is claiming right on Ac.04-00 gts of land by virtue of a patta and he has claimed that the property is abutting the main road with other internal roads on the remaining three sides. Therefore, it is very much essential to locate the property. The learned trial Court while appreciating this point in a correct way, directed appointment of a Commissioner with a particular instruction to conduct survey and fix the boundaries with the help of Assistant Director, Land and Survey records and also with the help of tippon and tonch map, such an exercise by the Commissioner and Assistant Director will certainly help the Court to come to a correct conclusion and it may not cause any prejudice to the rights and contentions of the plaintiffs. Therefore, there is no necessity to interfere with the order of the Court below and present C.R.P. is liable to be dismissed. 10
CRP No.259 of 2021
17. In the result, the revision is dismissed.
18. Consequently, Miscellaneous applications if any, are closed. There shall be no order as to costs.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU Date:02.12.2022 PSSK/PLV