HON'BLE SRI JUSTICE K. LAKSHMAN
CIVIL REVISION PETITION No.2368 OF 2023
ORAL ORDER:
Heard Mr. Ajay Kumar Madisetty, learned counsel for the
petitioners and Mr. MVM Avaneendra, learned counsel for the
respondent.
2. This revision is filed under Article - 227 of the Constitution of India challenging the order dated 02.08.2023 in I.A. No.259 of 2023 in A.S. No.100 of 2022 passed by learned I Additional District Judge, Warangal.
3. The respondent - Plaintiff had filed a suit vide O.S. No.363 of 2007 against the petitioners herein - defendants seeking recovery of possession, mandatory and perpetual injunctions in respect of schedule 'A' and 'B' properties i.e., eviction of the defendants from suit schedule 'B' property and hand over the vacant possession of the same to her and also a direction to the defendants to remove the unauthorized and illegally raised pillars and basement over the suit schedule 'B' property and restraining the defendants and their agents from interfering with her exclusive and peaceful possession over the suit schedule 'A' property in any manner.
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4. The said suit was decreed on 29.01.2016. Feeling aggrieved by the same the petitioners herein have preferred an appeal vide A.S. No.21 of 2016 (New A.S. No.100 of 2022). During pendency of the said appeal, the petitioners herein have filed an application vide I.A. No.259 of 2023 under Order - XXVI, Rule 10A read with Section 151 of CPC seeking to appoint an Advocate Commissioner to measure, demarcate and fix the extent in Survey No.213/E of Ursu Village, Khila Warangal Mandal of Warangal District, on the following grounds:
a) Land in Survey No.213/E of Ursu Revenue Village is only Acs.1.11 guntas. During the life time of their father, at the intervention of the elders, their father had partitioned the property, whereby 1/3rd share had given to the plaintiff and 2/3rd share was kept to his share and subsequently on the death of their father, 2/3rd share fell to the petitioners herein equally. Thus, the respondent herein has got 17 guntas while the petitioners herein got 17 guntas each which comes to Acs.1.11 guntas;
b) The respondent has sold 7 guntas out of her share;
c) The respondent mala fidely and dishonestly claiming that the land in Survey No.213/E is in excess of Acs.1.11 guntas and 3 KL,J CRP No.2368 of 2023 claims that she got 27 guntas and also claims that the petitioners herein got 27 guntas each, which is incorrect;
d) According to the petitioners, the total extent is Acs.1.11 guntas, whereas according to the respondent, it is Acs.2.01 guntas; and
e) In order to resolve the said issue, it is just and necessary to appoint an Advocate Commissioner to fix the actual extent in Survey No.213/E, and no prejudice would be caused to the respondent. They were not advised by their earlier advocate to seek such a relief.
5. The aforesaid application was resisted by the respondent on the following grounds:
a) The petitioners had adduced all the voluminous evidence during trial and they were given ample opportunity to that effect. Despite the same, the petitioners did not seek such a relief;
b) In order to set a new case, the petitioners have filed the aforesaid application;
c) In order to drag the matter, the petitioners filed a frivolous application;4
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d) The petitioners have fullest knowledge with certainty about suit schedule 'A' and 'B' properties and the rough sketch appended to the plaint. Therefore, now they cannot be permitted to contend that appointment of advocate commissioner is necessary to survey the land; and
e) Pursuant to the partition, the respondent was allotted Ac.0.27 guntas of land in Survey No.213/E and the same had been duly entered into Revenue Records long back and had been accorded with pattadar passbooks. The petitioners never challenged the same and tried to illegally dispossess her from 'A' schedule property and in fact she was dispossessed from 'B' schedule property.
6. Vide the impugned order, dated 02.08.2023, the trial Court dismissed the said application on the following grounds:
a) The suit was disposed of after full-fledged trial and on merits;
b) The appeal was preferred against the said judgment in the year 2016;
c) After a period of almost seven years, the petitioners have come up with the said application;5
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d) This is not the stage to decide the issue of the petitioners as the stage of appeal is not for collection of evidence;
e) It appears that to protract the matter, the petitioners have filed the petition when the main appeal was posted for arguments; and
f) There are no merits in the application and the same is liable to be dismissed;
7. Mr. Ajay Kumar Madisetty, learned counsel for the petitioners, by placing reliance on the decisions in Haryana Waqf Board v. Shanti Sarup 1; Bandaru Mutyalu v. Palli Appalaraju 2 and P. Sreedevi v. IVLN Venkata Lakshmi Narsimha Prasad 3 would submit that the application filed by the petitioners seeking appointment of Commissioner is maintainable at the stage of appeal. Under certain circumstances as narrated in P. Sreedevi3, Advocate Commissioner can be appointed. The said facts were not considered by the trial Court while dismissing the application filed by the petitioners herein. The petitioners have also filed two (02) more Interlocutory Applications i.e., I.A. Nos.167 and 168 of 2002 in A.S. No.100 2022, seeking to receive certain 1 . (2008) 8 SCC 671 2 . 2013 (6) Alt 26 (SB) 3 . 2020 (6) ALD 99 (TS) (DB) 6 KL,J CRP No.2368 of 2023 additional documents. The appellate Court without disposing the said applications, dismissed the above application erroneously.
8. On the other hand, Mr. MVM Avaneendra, learned counsel for the respondent, placing reliance on Penta Urmila v. Karukola Kumaraswamy 4 rendered by the combined High Court of Andhra Pradesh at Hyderabad, would submit that the present application filed by the petitioners during pendency of appeal under Order - XXVI, Rule 10A of CPC is not maintainable.
9. Perusal of the record would reveal that during pendency of the aforesaid suit, the petitioners have filed an I.A. in the month of February, 2013, seeking appointment of an Advocate Commissioner to note down the existing valuable stocks of the petitioner in the petition schedule property. The said application was also filed on the same lines. The respondent has filed copies of the affidavit and petition along with the counter. However, she did not have the details of its result. In the light of the same, this Court directed Mr. Ajay Kumar Madisetty, learned counsel for the petitioners, to get specific instructions on the same. On instructions, he would submit that the petitioners have filed the said application, but it was neither numbered nor decided in accordance with 4 . 2005 (2) ALD 130 7 KL,J CRP No.2368 of 2023 law. Having filed the said application, it is the duty of the petitioners to pursue the same. If the trial Court fails to take up the application and pass appropriate orders, it is for the petitioners to take necessary steps in accordance with law. But, they failed to do so.
10. As rightly held by the appellate Court in the impugned order that both the parties have adduced their evidence by examining the witnesses and filing the documents, and on consideration of the evidence, both oral and documentary, the trial Court decreed the suit. The petitioners herein have preferred an appeal challenging the said judgment. The impugned judgment and decree in O.S. No.363 of 2007 is dated 29.01.2016. Though the petitioners have filed the appeal in the year 2016, they have filed the present application only in the month of July, 2023 i.e., after lapse of seven years. It is also relevant to note that in the appeal grounds, the petitioners herein did not raise any ground that despite filing the aforesaid application seeking appointment of advocate commissioner, the trial Court did not consider the same. The aforesaid facts would reveal that the petitioners herein are trying to collect the evidence during pendency of the appeal which is impermissible.
11. In the light of the aforesaid discussion, the impugned order is a reasoned order and well-founded and it does not require interference by 8 KL,J CRP No.2368 of 2023 this Court in the present revision. The present revision fails and the same is liable to be dismissed.
12. The present Civil Revision Petition is accordingly dismissed. However, liberty is granted to the petitioners to request the appellate Court to decide I.A. Nos.167 and 168 of 2022 in accordance with law, and it is for the appellate Court to consider the same and pass appropriate orders in accordance with law. In the circumstances of the case, there shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending in the revision shall stand closed.
_________________ K. LAKSHMAN, J 10th November, 2023 Mgr