THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
C.R.P.No. 1263 of 2023
ORDER:
This Civil Revision Petition has been filed by the petitioner/defendant No.2 challenging the order of the Additional Senior Civil Judge-cum-Assistant Sessions Judge, Mancherial, dated 15.03.2023 in I.A.No.1 of 2023 in O.S.No.54 of 2012, rejecting the petition filed by the petitioner for appointment of Advocate Commissioner.
2. Brief facts leading to the filing of the present Civil Revision Petition are that the revision petitioner is the defendant No.2 in the Suit and the respondent No.1 is the plaintiff. The suit in O.S.No.54 of 2012 was filed for partition of the Suit Schedule Property i.e., land admeasuring 270 Sq.Yards, in Survey No.41, situated at Garmilla Sivar R/M Mancherial, within the Mancherial municipal limits into two equal shares and for allotting half share and for possession of the half share to the plaintiff and for mandatory injunction for dismantling the illegal structures made by the defendant No.2 in the suit schedule land and also for permanent injunction restraining the defendant No.2 from making any further illegal construction in 2 PMD,J CRP.No. 1263 of 2023 the suit land. The petitioner has filed the I.A.No.1 of 2023 seeking appointment of an Advocate Commissioner for measuring the land in Survey No.41 to an extent of 846 sq.yards along with Mandal Surveyor/Town and Country Plan Officer and to record its physical features with aid and assistance of the Mandal Surveyor and to report the same before the Court. The said application was contested by the plaintiff and vide orders dated 15.03.2023 the said petition was dismissed by observing that the suit is filed for partition and separate possession for allotment of half share over the suit land and further that the application for appointment of Advocate Commissioner is to measure land to an extent of 846 sq.yards, which is beyond the scope of suit land to an extent of 270 sq.yards. Challenging the same, the present Civil Revision Petition is filed.
3. Learned counsel for the petitioner submitted that the Court below failed to see that there is no bar for appointment of Advocate Commissioner in the suit for partition when there is a dispute of localization or demarcation of the property. It is further submitted that the partition suit is also declaratory in nature wherein the rights of the parties to the 3 PMD,J CRP.No. 1263 of 2023 Suit Schedule Property are determined and therefore, there is nothing wrong in appointing an Advocate Commissioner for proper elucidation of facts to the dispute. He therefore, sought a order setting aside the order dated 15.03.2023 in I.A.No.1 of 2023 in O.S.No.54 of 2012 and to direct the Lower Court to allow the said I.A., and to pass such other order or orders.
4. Learned counsel for the respondents opposed the said contention and submitted that I.A.No.1 of 2023 is filed to gather evidence, which is not permissible. He further submitted that the said application is beyond the scope of suit, as observed by the Court. He drew the attention of this Court that the Schedule of Suit Property which is 270 sq.yards, whereas in I.A.No.1 of 2023, the petitioner was seeking to measure land to an extent of 846 sq.yards.
5. Learned counsel for the petitioner however, submitted that the entire property is of 846 sq.yards, which is to be partitioned equally amongst both the parties i.e., 423 sq.yards each and out of 423 sq.yards, the defendant No.2 has purchased 50% and therefore, the petitioner has sought the measurement of the entire property.
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PMD,J CRP.No. 1263 of 2023
6. Having regard to the rival contentions and the material on record, this Court finds that the suit is for partition and separate possession of the partitioned property. Therefore, the existence and the characteristics of the property and also the boundaries of the property are not in dispute. Further, as rightly held by the Lower Court, the Suit Schedule Property is only to an extent of 270 sq.yards, whereas the petitioner is seeking measurement of 846 sq.yards, which is beyond the scope of the suit. Learned counsel for the petitioner placed reliance upon the judgment of Hon'ble Supreme Court in the case of Haryana Waqf Board Vs. Shanti Sarup and Others 1 and also the judgment of this Court in the case of Jajula Koteshwar Rao Vs. Ravulapalli Masthan Rao 2. However, this Court finds that these two decisions are distinguishable on facts and are not applicable to the facts of the case before this Court.
7. In view of the same, this Court does not find any merit in the Civil Revision Petition and it is accordingly dismissed.
1 (2008) 8 SCC 671 2 2016(1) ALT 134 (S.B.) 5 PMD,J CRP.No. 1263 of 2023
8. Accordingly, this Civil Revision Petition is dismissed. There shall be no order as to costs.
9. Miscellaneous petitions, if any, pending in this CRP, shall stand closed.
____________________________ JUSTICE P.MADHAVI DEVI Date: 20.09.2023 bak 6 PMD,J CRP.No. 1263 of 2023 7 THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI C.R.P.No. 1263 of 2023 Dated: 20.09.2023 bak