Telangana High Court
Sikha Krishna vs Adi Swapna on 28 November, 2023
HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
CIVIL REVISION PETITION Nos. 59 & 85 of 2023
COMMON ORDER:
The issue involved in both the revision petitions is one and the same and the parties are almost common. Therefore, they are heard together and being disposed of by this common order.
2. These two Civil Revision Petitions are preferred by the defendants aggrieved by orders dated 07.12.2022 in I.A. No.2 of 2022 in O.S. No. 143 of 2017 and I.A. No. 2 of 2022 in O.S. No. 144 of 2017, both dated 07.12.2022 passed by the Principal Junior Civil Judge-cum-Judicial Magistrate of First Class at Kothagudem. By the impugned orders, the applications filed by the defendants under Order 26 Rule 9 read with Section 151 C.P.C. to appoint an Advocate- Commissioner to locate the suit schedule properties i.e., Plot Nos. 17 and 18, with the help of Mandal Surveyor, in order to ascertain whether they are in Sy. No.802 or Sy. No. 805 were dismissed.
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3. The facts of the case are that the respondent in C.R.P. No. 59 of 2023, claiming to be the owner and possessor of Plot No. 17 and the respondent in C.R.P. No. 85 of 2023, claiming to be the owner and possessor of Plot No. 18, instituted suits in O.S. Nos.143 and 144 of 2017 respectively, against the defendants, revision petitioners herein, seeking perpetual injunction. According to them, they are the owners and possessors of the suit schedule properties, which are vacant house sites to an extent of 266.66 sq.yds. each in plot Nos. 17 & 18 in Sy. Nos. 805, situated at Paloncha Revenue Village, Paloncha Town & Municipality, Khammam District. The revision petitioners- defendants contested the suit by filing their written statement contending that no survey number with 805, described by the plaintiff, was available in the revenue records of Paloncha. Necessary issues were framed and trial was commenced. The evidence on the side of plaintiff was closed and after adducing the evidence on behalf of defendants, when the matter was posted for defendants' further evidence, I.A. No. 1 of 2022 in O.S. No. 143 of 2017 came to be filed by the defendants seeking appointment of 3 an Advocate-Commissioner with similar relief as sought for in the impugned I.A. i.e., to locate the suit schedule plot with the help of Mandal Surveyor. Upon allowing the said I.A. on 26.07.2022, the matter, at the instance of the plaintiff in O.S. No. 143 of 2017, was carried in revision before this Court in C.R.P. No. 1730 of 2022. By orders dated 22.09.2022, this Court allowed the revision setting aside the orders of the trial Court in appointing the Advocate-Commissioner with an observation that the trial Court can appoint the Advocate-Commissioner only after adducing the evidence by the defendants, if it considers necessary. Thereafter, the evidence on the side of defendants was closed on 01.08.2022. Hence, in view of the observations made by this Court in the above C.R.P., the defendants, revision petitioners herein filed I.A. Nos. 2 of 2022 in both the suits with the similar relief as sought for in I.A. No. 1 of 2022 in O.S. No. 143 of 2017. On contest, the trial Court dismissed both the I.As. with separate orders of even date holding that it is not a fit case to appoint Advocate-Commissioner to undertake localization of the suit schedule properties. Hence, the 4 defendants are before this Court by way of present revisions.
4. The learned counsel for the petitioners submits that the learned trial Court failed to appreciate the fact that in a suit for injunction, the main criteria is possession to decide if the relief of injunction could be granted or declined. The trial Court failed to take into consideration that it is the specific case of the revision petitioners that the land claimed by the plaintiff, respondent herein does not bear the Survey number 805 which is strengthened as per Ex.B.1, letter, issued by the Mandal Revenue Officer to the effect that no such survey number is in existence. Inasmuch as possession is pre-requisite to grant relief of injunction and as the plaintiff is claiming possession on the basis of Survey Number 805, which is non-existing survey number as per revenue records, the trial Court ought to have appointed Advocate-Commissioner to resolve the dispute in effective manner.
5. On the other hand, the learned counsel appearing on behalf of the plaintiff, respondent in both the revisions, 5 contends that as the revision petitioners, defendants, failed to adduce any evidence nor filed any documents in proof of their title or right or possession in their evidence, the trial Court has rightly dismissed the I.As. and therefore, the impugned orders need no interference by this Court.
6. Heard both the learned counsel and perused the material available on record.
7. The point that arises for consideration in these revisions is whether the impugned orders passed by the trial Court in rejecting the request of the revision petitioners for appointment of Advocate-Commissioner to undertake the localization of the suit schedule properties suffer from any infirmity?
8. Admittedly, this Court in C.R.P. No. 1730 of 2022 while setting aside the orders of the trial Court in appointing Advocate-Commissioner, made an observation that the trial court can appoint the Advocate Commissioner only after the defendants adduced their evidence, if it considers necessary, as the same would not amount to gathering of evidence. What necessitated this Court to 6 make such an observation is that the suit, at that particular point of time, was coming up for further evidence of defendants. Equally, it was also observed at para No. 13 that "only after defendants adduced their evidence, if the court still considers necessary to appoint an advocate commissioner, then the court below can appoint the advocate commissioner...".
9. Before the trial Court, it is the specific case of the revision petitioners, defendants that no survey number with 805 is available at Paloncha revenue village and the suit schedule Plots are part and parcel of Sy. No. 802 of Sikha Mani's land and that they are cultivating the same. To prove their case, they have relied on Exs.B.1 to B.4, which are letters issued by the Mandal Revenue Officer, judgment in O.S. No. 23 of 2018 and death certificate of Mani. After disposal of C.R.P. No. 1730 of 2022, the evidence on the side of defendants was closed. In the impugned order, the trial Court specifically observed that the defendants did not file any documents to establish their right or interest over the suit schedule plots except Exs.B.1 to B.4. Such being the case, the trial Court 7 observed that that as the revision petitioners, defendants failed to adduce any documentary evidence showing their right or interest in respect of the suit schedule plots, it is not a fit case to appoint Advocate-Commissioner to undertake localization of the property in question.
10. It is well settled law that in a suit for perpetual injunction, the issue that falls for consideration is in regard to the possession of the suit property and that the burden is on the plaintiff to establish his/her case by adducing necessary oral/documentary evidence and it is not for the defendants to disprove the case of the plaintiffs. By placing reliance on a decision of this Court in Adarsh Constructions, Hyderabad v. Qamaarunnissa Begum 1, the learned counsel for the revision petitioners contends that there is no absolute bar for appointment of Advocate- Commissioner in a suit for injunction simplicitor. The facts in the said decision are on a different footing. In that case, the Advocate-Commissioner was appointed to localize the schedule A & B properties and also to localize the property covered by the registered sale deed, dated 1 2022 (3) ALT 662 (TS) 8 20.08.1965. Even the decision relied on by the learned counsel for the petitioners in M. Yadaiah v. M. Chilkamma 2 is not applicable to the facts of the case on hand as the specific plea of the plaintiffs therein was that it is not possible for them to show the existence of the road by leading any evidence except by physical verification which is possible only through appointment of an Advocate-Commissioner. So also, the decision of the Division Bench of this Court in Smt. A. Laxmamma v. Smt. A. Venkatamma 3 is not applicable to the facts of the case on hand. In the decision rendered by the composite High Court of Andhra Pradesh in Dammalapati Satyanarayana v. Datla Venkata Ramabhadra Raju @ D.V.R. Raju 4, which is relied on by the learned counsel for the revision petitioners, it was observed at para No. 6 as under:-
"6. The result of allowing the I.A. is that the Advocate Commissioner shall undertake localization of the suit schedule property with the help of a competent surveyor, basing on the title deeds of both the parties. it must be noted that the so-called title deeds must be accepted by the court in evidence, before they 2 2022 (2) ALT 80 (TS) 3 2016 (6) ALT 795 (D.B.) 4 2006 (4) ALD 675 9 constitute the basis for identification of the property. The admissibility, relevance etc., of the sale deeds can be undertaken only at the stage of recording evidence. The demarcation of the land with reference to location, survey numbers etc., must be with reference to the title deeds, which are admitted by the Court in evidence....".
(emphasis added)
11. In the case on hand, the trial Court recorded a specific finding that though the evidence of defendants was closed, they did not file any document to show their right or interest over the subject matter of the property except Exs.B.1 to B.4. Therefore, in the facts and circumstances of the instant case, the impugned orders passed by the trial Court dismissing the applications of the petitioners to appoint an Advocate-Commissioner to locate the suit schedule properties with the help of Mandal Surveyor to ascertain whether the property is in Sy. No. 802 or 805 do not suffer from any infirmity or illegality warranting interference by this Court in exercise of powers under Article 227 of the Constitution of India.
12. In the result, both the Civil Revision Petitions are dismissed. No costs.
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Pending Miscellaneous Petitions, if any, shall stand closed.
______________________________ JUSTICE M.G. PRIYADARSINI 28th November, 2023 Tsr