THE HONOURABLE SRI JUSTICE K.LAKSHMAN
CIVIL REVISION PETITION No.2337 OF 2023
ORDER:
Heard Mr.Mummaneni Srinivasa Rao, learned counsel for the petitioners and Mr. Mallarapu Kiran Reddy, learned counsel appearing for the respondent.
2. Assailing the order dated 23.06.2023 passed in I.A.No.44 of 2018 in I.A.No.365 of 2017 in O.S.No.101 of 2017 by the Additional Junior Civil judge at Sathupally (for short, 'trial Court'), the petitioners herein/defendants filed the present revision.
3. The respondent herein/plaintiff filed a suit vide O.S.No.101 of 2017 before the trial Court, against the petitioners/defendants herein for perpetual injunction restraining the petitioners herein and their men from interfering with the plaintiff's peaceful possession over the suit schedule property i.e. the land to an extent of Ac.0.35guntas in Sy.No.382/A/1 situated in Karaigudem revenue Village of Penuballi Mandal, Khammam District, claiming that he is absolute owner and possessor of the said property. He got the suit schedule property in partition among the family members. Since the date of partition, he has been in peaceful possession and enjoyment of the same without any 2 interruption since last 30 years. His name is also entered in revenue records as pattadar and possessor of Sy.No.382/A/1. Title deed and pattadar passbook were also issued in his favour. He has raising paddy crop in the suit schedule property. The petitioners herein/defendants without having any right, interest, title or whatsoever over the suit schedule property, interfering with his peaceful possession and enjoyment. On 25.08.2017 and on 28.08.2017, the defendants tried to enter into the suit schedule property but the plaintiff resisted their illegal acts. With the said contentions he has filed the said suit against the petitioners/defendants for perpetual injunction.
4. In the said suit, the respondent has also filed an Interlocutory Application vide I.A.No.365 of 2017 seeking ad interim injunction restraining the petitioners herein from interfering with the possession of the plaintiff over the suit schedule property.
5. During pendency of the said I.A.No.365 of 2017, the petitioners herein/defendants filed a petition vide I.A.No.44 of 2018, seeking appointment of Advocate Commissioner for the purpose of ascertaining the survey number of the suit schedule property as the same is not clearly mentioned by the plaintiff. The defendants stated that father of the 1st defendant purchased the suit schedule property 3 located in Sy.No.342 of Karaigudem Revenue Village through an agreement of sale dated 03.05.1965 from one Kalluru Seetharamachander Rao. He has also filed relevant pahanies obtained from Mee Seva Kendram and also the possessory sale agreement. The plaintiff with the documents not relating to suit schedule property filed the suit and also a petition for injunction. In fact, the suit schedule property was acquired by father of 1st defendant and after death of his father, he inherited the suit schedule land which is in Sy.No.342 of Karaigudem revenue Village.
6. In I.A.No.44 of 2018, the plaintiff filed counter stating that the suit schedule property is his ancestral property. He is the only son to his father. After death of his father, he became the owner and possessor of the suit schedule property as such there is no document of partition. The name of the father of the 1st defendant was not found in the earlier pahanies, but he has created the alleged agreement of sale recently for the purpose of the suit. The suit schedule property is 382/A/1 but not Sy.No.342. Since the suit schedule property is agricultural property, there is no need to note down the physical features of the suit schedule property and to ascertain the survey number. The defendants filed the said petition only for collection of evidence. It is the settled law that 4 Advocate Commissioner cannot be appointed at initial stage for collection of evidence.
7. The trial Court on hearing both sides and perusing the record, vide impugned order dated 23.06.2023 dismissed I.A.No.44 of 2018 on the grounds that I.A.No.365 of 2017 was already decided on merits vide order dated 30.09.2019 during pendency of revision vide CRP No.1507 of 2019. The said CRP was preferred against the earlier order dated 27.12.2018 in I.A.No.44 of 2018. Though the defendants are aware of the disposal of I.A.No.365 of 2017, did not bring the said fact to the notice of the High Court in the said CRP. The disposal of the said CRP is subsequent to the disposal of I.A.No.365 of 2017. Since this Court is unaware of the disposal of said I.A.No.365 of 2017, disposed of said CRP No.1507 of 2019 vide order dated 09.01.2020 directing the trial Court to restore I.A.No.44 of 2018 and decide afresh. Since I.A.No.365 of 2017 in which the present I.A.No.44 of 2018 filed was disposed of on 30.09.2019 granting interim injunction to the plaintiff till disposal of the main suit and this Court has not passed any orders for restoration of said petition, it is not possible to restore I.A.No. 44 of 2018 and the same has become infructuous. 5
8. Aggrieved by the said order, the petitioners herein/defendants have filed the present revision on the following grounds:- i. The trial Court failed to appreciate that the survey number of the petitioners/defendants is 342 and the extent is Ac.1.15gutnas, whereas the plaintiff is claiming land in Sy.No.382/A/1 to an extent of Ac.35gutnas, and the remaining extent of the land went into the plaintiff's brothers share, the said aspect is lost sight by the trial court.
ii. The suit filed by the plaintiff is with mala fide intention to grab their property in Sy.No.342 and obtained ex parte injunction order. Later filed amendment petition vide I.A.No.203 of 2018 seeking to amend the survey number as Sy.No.382/A/1 from '238/A/1' and the same was allowed vide order dated 19.06.2018 but the plaintiff did not modify the survey number in the interim injunction orders.
iii. The defendants have filed the said I.A.No.44 of 2018 to appoint Advocate Commissioner to record the physical features of their land and to ascertain the suit schedule property. The same was dismissed vide order dated 27.12.2018. Against the said order, the defendants filed revision vide CRP No.1507 of 2019. This 6 High Court disposed of the revision with a direction to the trial Court to decide I.A.No.44 of 2018 afresh.
iv. The trial Court again dismissed the I.A.No.44 of 2018 on the ground that the I.A.No.365 of 2017 in which I.A.No.44 of 2018 was already disposed of.
v. The impugned order is passed without application of mind. vi. In view of the law laid down by this Court in Karre Narsimulu vs Gaddamidi Diddaiah-(2013) 5 ALD 376, appointment of the Advocate Commissioner is valid and necessary to adjudicate the issue, since the parties are disputing the land in different survey numbers.
9. With the said submissions, they sought to set aside the impugned order.
10. Whereas, learned counsel for the respondent would contend that the Court below considering the entire facts and also the order dated 09.01.2020 in CRP No.1507 of 2019, dismissed the application filed by the petitioners/defendants. There is no error in it. The petitioners herein are trying to collect the evidence to defeat the claim of the respondent. With the said submissions, he sought to dismiss the present revision.
7FINDING OF THE COURT:-
11. The aforesaid facts would reveal that the respondent/plaintiff had filed the aforesaid suit vide O.S.No.101 of 2017 against the petitioner herein seeking perpetual injunction. In the suit schedule, initially, the survey number was mentioned as '238/A/1'. The respondent/plaintiff had also field I.A.No.365 of 2017 in O.S.No.101 of 2017 seeking ad interim injunction order. TDuring the pendency of the said application, the petitioners herein filed I.A.No.44 of 2018 under Order XXVI Rule 9 read with 151 of CPC, to appoint an Advocate Commissioner to record physical features of the suit schedule property and also to ascertain survey number of the suit schedule property. During pendency of the said application, the respondent/ plaintiff had filed I.A.No.203 of 2018 to amend the survey number from '238/A/1 to '382/A/1'. Learned Junior Civil Judge, Sattupally, allowed the said application vide order dated 19.06.2018. There is no challenge to the said order and it attained finality.
12. It is apt to note that the learned Principal Junior Civil Judge, Sattupally vide order dated 19.06.2018, allowed I.A.No.203 of 2018 without deciding I.A.No.44 of 2018. Thus, the trial Court committed procedural irregularity. However, there is no challenge to the order 8 dated 19.06.2018 and it attained finality. The Court below vide order dated 27.12.2018 dismissed I.A.No.44 of 2018 filed by the petitioners herein.
13. Challenging the said order, the petitioners herein have filed CRP No.1507 of 2019 and this Court vide order dated 09.01.2020 disposed of the said CRP setting aside the order dated 27.12.2018 in I.A.No.44 of 2018 in O.S.No.101 of 2017 passed by the Court below and restored it to file for disposal afresh in accordance with law.
14. On remand, vide impugned order dated 23.06.2023, the Court below dismissed I.A.No.44 of 2018 mainly on the ground that the same was filed in I.A.No.365 of 2017 in O.S.No.101 of 2017 and the said I.A.No.365 of 2017 was allowed on 30.09.2019 itself. There were no interim orders passed in CRP No.1507 of 2019 and while disposing the said CRP, the petitioners herein/defendants did not bring the disposal of I.A.No.365 of 2017 to the notice of this Court.
15. Perusal of the record would reveal that the petitioners herein have filed I.A.No.44 of 2018 in I.A.No.365 of 2017 in O.S.No.101 of 2017 on 31.01.2018 seeking to appoint an Advocate Commissioner to record physical features of the petition schedule property to ascertain survey number of the suit schedule property with the help of Mandal 9 Surveyor, Penuballi Mandal. It is the specific contention of the petitioners herein that the property they are claiming is situated in Sy.No.342 of Karaigudem revenue village under agreement of sale, dated 03.05.1965 and 1st respondent/plaintiff with the help of documents which are not relating to the suit schedule property, pressed them into service. Therefore, appointment of an Advocate Commissioner is necessary for adjudication of the lis involved in the suit. It is also contended by the petitioners that to prove their contention in the suit, an Advocate Commissioner may be appointed to note down the physical features of the petition schedule property and to ascertain survey number with the help of the Mandal Surveyor, for fair and just disposal of the injunction petition and to arrive at just conclusion, ascertaining survey number is more helpful. With the said contentions, they sought to allow I.A.No.44 of 2018.
16. Thus the main grievance of the petitioners/defendants is that the land which they are claiming is in Sy.No.342 of Karaigudem revenue village whereas, the respondent/plaintiff is claiming the said land basing on the false documents.
17. As discussed supra, the respondent/plaintiff himself filed I.A.No.203 of 2018 seeking to amend survey number and I.A.No.44 of 10 2018 was filed by the petitioners herein seeking appointment of an Advocate Commissioner. The said application vide I.A.No.203 of 2018 was allowed vide order dated 19.06.2018. The trial Court without deciding I.A.No.44 of 2018, decided I.A.No.365 of 2017.
18. Perusal of the order dated 27.12.2018 in I.A.No.44 of 2018 would reveal that in the cause title of the said order itself, it is mentioned as I.A.No.44 of 2018 in O.S.No.101 of 2017. Considering the said aspects only, this Court, vide order dated 09.01.2020 in CRP No.1507 of 2019 set aside the said order dated 27.12.2018 in I.A.No.44 of 2018 and remanded the matter for fresh disposal. This Court also held that the submission made by the petitioners that the discussion and conclusions in the order dated 27.12.2018 in I.A.No.44 of 2018 are in favour of the petitioners herein, inadvertently, the said application was dismissed. The said submissions of the petitioners herein are supported by the findings and conclusions reached by the trial Court in the order dated 27.12.2018. Thus, this Court directed the trial Court to decide I.A.No.44 of 2018 afresh in accordance with law. The Trial Court instead of deciding the said application in accordance with law, dismissed the same vide impugned order dated 23.06.2023 on hyper- technical aspects i.e. the said I.A.No.44 of 2018 was filed in 11 I.A.No.365 of 2017 and the said I.A.No.365 of 2017 was allowed, therefore, I.A.No.44 of 2018 was dismissed. That is not the purport of the order dated 09.01.2020 in CRP No.1507 of 2019. The Court below on remand, instead of deciding the said I.A.No.44 of 2018, on merits, dismissed the said application on hyper-technicalities.
19. As discussed supra, it is the specific contention of the petitioners herein that the property is situated in Sy.No.342 and respondent/ plaintiff is claiming the same basing on the false documents. The trial Court failed to consider that the respondent/plaintiff himself filed I.A.No.203 of 2018 seeking to amend the survey number on 06.06.2018 i.e. after filing of I.A.No.44 of 2018 by the petitioners herein i.e. on 31.01.2018. The Court below lost sight of the said fact.
20. As discussed supra, the petitioners herein in paragraph No.6 of the affidavit in I.A.No.44 of 2018, specifically contended that to prove their contention in the suit, an Advocate Commissioner may be appointed to note down the physical features of the petition schedule property and to ascertain survey number with the help of the Mandal Surveyor. The said aspects were not considered by the trial Court. 12
21. In the light of the aforesaid controversy, this court directed the learned counsel for the petitioner to file a copy of the written statement, affidavit, petition, counter and order in I.A.No.203 of 2018 and order dated 30.09.2018 in I.A.No.365 of 2017. He has filed the said documents along with the memo vide USR No.95208 dated 25.09.2023 duly serving a copy of the same on the learned counsel for the respondent/plaintiff. Perused the said documents.
22. It is settled law that either party to the suit can ask for appointment of Advocate Commissioner even before the trial in situations where there is controversy as to identification, location or measurement of the land, or premise or object, local investigation should be done at the early stage so that the parties are aware of the report of the Commissioner and go to trial prepared. The party against whom report may have gone may chose to adduce evidence in rebuttal.
23. In Badana Muthyalu Vs. Palli Appalaraju 1 relying on several other judgments including the judgment of the Division Bench which was also followed in Savithramma Vs. B.Changa Reddy 2, this Court considered the said aspect. In Savithramma (supra), it was held as follows:-
1
(2013) 5 ALD 376 2 (1988) 1 ALT 353 13 "The question as to when a commissioner could be appointed should be within the wide discretion of the trial court but it cannot be said that no commissioner could be appointed before the issues are framed or the evidence is led............".
24. The Court below did not consider the said aspects, while dismissing the I.A.No.44 of 2018.
25. As discussed supra, vide order dated 09.01.2020, in CRP No.1507 of 2019, this Court having set aside the earlier order dated 27.12.2018 in I.A.No.44 of 2018, remanded the matter back to the trial Court with a direction to decide the same afresh in accordance with law. The court below instead of deciding the said application on merits in accordance with law, dismissed the same on hyper-technicalities. In fact, the Trial Court dismissed the said application under misconception that it had been filed in I.A.No. 365 of 2017. In fact, the said finding of the trial court is factually incorrect in view of the specific contention of the petitioners in paragraph No.6 of affidavit filed in I.A.No.44 of 2018.
26. In the light of the aforesaid discussion, this revision is allowed. The impugned order dated 23.06.2023 in I.A.No.44 of 2018 in I.A.No.365 of 2017 in O.S.No.101 of 2017 passed by the learned Additional Junior Civil Judge, Sattupally is set aside. I.A.No.44 of 2018 is allowed. The Trial Court is directed to appoint an Advocate 14 Commissioner to record physical features of the petition schedule property to ascertain survey number of the same with the help of the Mandal Surveyor, Penuballi Mandal.
Since the suit is of the year 2017, the trial Court shall make an endeavour to dispose of the very suit itself in accordance with law as expeditiously as possible.
Consequently, miscellaneous petitions, if any, pending in this revision shall stand closed.
________________________ JUSTICE K. LAKSHMAN Date:13.10.2023.
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