Telangana High Court
Nandagiri Susheela vs Nandagiri Agaiah on 12 January, 2024
Author: P. Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No.2649 of 2023
ORDER:
This Civil Revision Petition is filed aggrieved by the order passed in I.A.No.262 of 2023 in A.S.No.25 of 2018, dated 05.06.2023 on the file of the Court of the I Additional District Judge at Karimnagar.
2. I.A.No.262 of 2023 is filed by petitioner/plaintiff for appointment of an Advocate Commissioner to note down the physical features of the Suit Schedule Property and the same was dismissed by the Trial Court. Against the same, the petitioner preferred the present Civil Revision Petition.
3. Learned counsel of petitioner mainly contended that the appellate Court ought to have seen that appointment of an advocate commissioner at this stage would end in resolution of the dispute exist between the parties and ought to have seen that no prejudice would have been caused to the interest of the respondents herein in the event of appointing advocate commissioner. 2
4. The Suit vide O.S.No.10 of 2011 filed for declaration of title and perpetual injunction was dismissed by the trial Court on 29.11.2017 and against the same, the appeal vide A.S.No.25 of 2018 is preferred. During the pendency of the appeal, I.A.No.262 of 2023 was filed and it was dismissed on 05.06.2023.
5. The petitioner herein before the trial Court stated that her father was having land to an extent of Ac.04.38 guntas in Sy.No.1253 and he has sold most of the land except the suit schedule property which was meant for family firewood business. The respondents stated that petitioner created false documents regarding the said property claiming the right over the property and further contended that her adoptive father sold the property in favour of one Nandagiri Lachaiah and also filed pattadar passbook and possession certificate issued by the Gram Panchayath. But they have not filed copy of sale deed. Though Exs. A1 to A.11 are filed, the trial Court did not consider the same, though the petitioner is in possession of suit schedule property and her son is using the suit 3 schedule property for preserving timber. Therefore, requested for appointment of an Advocate Commissioner.
6. In the counter filed by the respondents, they contended that petitioner is trying to introduce a new case without pleading at the earlier stage. The adoptive father of the petitioner died in the year 1994. The petitioner filed a proof that she is adoptive daughter and she is entitled to claim the suit land. She filed false suit to grab the property from the defendants. As such, the said application for appointing of the advocate commissioner cannot be permitted to prove the possession and they also relied upon the judgment of the Hon'ble High Court in A.Gopal Reddy Vs.R.Subramanyam Reddy 1.
7. The 1st appellate Court considered several citations and held that Advocate Commissioner cannot be appointed to prove possession of the property as the petitioner did not explained proper reasons. It was also observed that no plea was taken by either of the parties before the trial Court when the pleadings of the parties are with the same 1 2013 93 ALT 623 : 2013 (1) L.S. 356 4 background. As such, appointment of Advocate Commissioner to note down the physical features of the property is not required. Moreover, the said application was filed with an intention to drag the proceedings and accordingly dismissed the application.
8. The main contention of the petitioner herein is that she is in possession of the property and her son is using the land for preserving timber and the appointment of Advocate Commissioner would put an end to the litigation of the parties. Petitioner herein intended file the proceedings of the Tahasildar, Manakondur Mandal vide Lr.No.B/1009/2022, dated 01.10.2022 by way of additional evidence to prove her possession. In fact she asked for appointment of Advocate Commissioner to note down the physical features. As there is no dispute regarding the physical features, the trial Court rightly observed that there is no requirement to appoint an Advocate Commissioner and also the possession has to be proved by both the parties by adducing proper oral and documentary evidence. The Advocate Commissioner 5 cannot be appointed to prove the possession as it amounts to collection of evidence. Therefore, this Court finds no reason to interfere with the order passed by trial Court in I.A.No.262 of 2023 in A.S.No.25 of 2018.
9. In the result, the Civil Revision Petition is dismissed. No order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
___________________ P. SREE SUDHA, J Date: 12.01.2024 CHS 6 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA C.R.P. No. 2649 of 2023 DATED: 12.01.2024 CHS