THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
CIVIL REVISION PETITION NO.1331 OF 2023
ORDER
This Civil Revision Petition (CRP) is filed against the order of the Senior Civil Judge at Asifabad dt.20.02.2023 in I.A.No.211 of 2022 in O.S.No.13 of 2018.
2. The petitioner is the plaintiff in O.S.No.13 of 2018 which is filed for declaration of title and recovery of possession of the suit schedule A to D plots out of Survey No.143/E/1 of Boregaon Village of Kaghaznagar Mandal, Kumram Bheem Asifabad District admeasuring Ac.1.35 cents. The plaintiff has filed I.A.No.211 of 2022 seeking appointment of an Advocate Commissioner under Order 26 Rule 9 read with Section 151 of CPC assisted by any technical man from the Survey and Settlement Department to find out whether the suit plots A to D are part of Survey No.143/E/1 or part of Survey No.103 of Kothapet Village of Kaghaznagar Mandal and to report the same to meet the ends of justice. The same was contested by the respondents and thereafter, the trial Court has observed that the appointment of an Advocate Commissioner is not permissible in the circumstances mentioned C.R.P.No.1331 of 2023 2 therein. Thus, I.A.No.211 of 2022 was dismissed, against which the present CRP is filed.
3. Learned counsel for the petitioner reiterated the submissions made in the I.A. and submitted that the petitioner was the owner and possessor of the suit schedule land, but the respondents, in their counter/written statement, have taken a plea that the suit schedule plots are not part of Survey No.143/E/1 of Boregaon Village or part of Survey No.103 of Kothapet Village and that they are in lawful possession of the respondents. The learned counsel for the petitioner submitted that since the contention of the respondents has been that they are in possession of the suit plots which are in Survey No.103 and not in Survey No.143/E/1, the same have to be surveyed by a Technical person from the Survey and Settlement Department and have to be measured and identified by an Advocate Commissioner. He submitted that the lower Court has erroneously dismissed the application for appointment of an Advocate Commissioner. He therefore prayed for allowing the I.A.
4. Learned counsel for the respondents, on the other hand, supported the order of the lower Court and submitted that the respondents had filed their written statement immediately, i.e., on C.R.P.No.1331 of 2023 3 16.08.2019, whereas the present Application has been filed on 13.10.2022 only to protract the litigation. It is submitted that the plaintiff himself has mentioned that Dr. Ratnam Sunitha had purchased the suit schedule property through a registered sale deed bearing No.1120/2003 dt.11.08.2003 from its owner Sri Suman Kumar Varma and later, one Kotagiri Shankar Goud purchased it on 22.02.2007 through a registered sale deed bearing No.586/2007 and that on 11.06.2008, the plaintiff purchased the said property through registered sale deed bearing Document No.1719/2008 and obtained possession from Kotagiri Shankar Goud and the said registered sale deed was effected for mutation and also for issuance of pattedar passbooks and that the revenue officials verified the record and conducted spot enquiry and implemented the registered sale deed by effecting mutation on his name and that the plaintiff got the said land converted from agricultural land into non-agricultural land through Proc. RC No.A/272/2015 dt.16.03.2015 issued by the Tahsildar, Kaghaznagar and he got approval for construction of Jubilee garden function hall on 18.03.2015 and he left passage of 35 cents abutting the wall of that building for using it as parking place and kept two gates to the wall for that purpose. Therefore, the plaintiff is clearly stating that he is aware of the boundaries of the C.R.P.No.1331 of 2023 4 property and that he is in possession of the property and that the respondents are claiming his land in Survey No.103 of Kothapet Village.
5. In view of the same, the properties appear to be in different areas and the petitioner/plaintiff is not disputing it. The plaintiff is claiming that he is in possession of the property and therefore, he has to prove his right by leading evidence in support of his contentions and cannot gather evidence by appointment of an Advocate Commissioner.
6. The learned counsel for the respondents placed reliance upon the judgment of a Division Bench of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh in the case of Sarala Jain and others Vs. Sangu Gangadhar and others 1, wherein the Court has observed that where the relief in the plaint is only to confirm the boundaries since the property was already demarcated twice, appointment of Advocate Commissioner for the same purpose does not arise. It was observed that if the suit is filed for fixing boundaries by the Court, then appointment of Advocate Commissioner would serve purpose to decide the real controversy between the parties but it is not even the case of the petitioner that schedule property is not 1 2016 (3) ALD 197 C.R.P.No.1331 of 2023 5 demarcated and in such case, appointment of Advocate Commissioner is wholly unnecessary and it is beyond the scope of the suit. Since the said facts are similar to the facts of the case before this Court, the judgment of the Coordinate Bench is also applicable to the facts of this case.
7. Therefore, this Court does not find any reason to interfere with the order of the lower Court.
8. The Civil Revision Petition is accordingly dismissed. No order as to costs.
9. Pending miscellaneous petitions, if any, in this CRP shall also stand dismissed.
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JUSTICE P. MADHAVI DEVI
Date: 17.11.2023
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