Telangana High Court

Karre Narsimulu vs Gaddamidi Diddaiah And 11 Others on 21 January, 2021

Bench: T.Amarnath Goud

 HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD

                             ****

           CIVIL REVISION PETITION NO.1193 OF 2020

Between:

Karre Narsimulu

                                                      ....Petitioner

                              And

Gaddamidi Siddaiah and 11 Others
                                                    ....Respondent

JUDGMENT PRONOUNCED ON: 21.01.2021

       THE HON'BLE SRI JUSTICE T.AMARNATH GOUD

1.   Whether Reporters of Local newspapers

     may be allowed to see the Judgments?              : No

2.   Whether the copies of judgment may be

     Marked to Law Reporters/Journals?                 : Yes

3.   Whether His Lordship wishes to

     see the fair copy of the Judgment?                : Yes




                                          _________________________

                                           T.AMARNATH GOUD, J
                                  2




          *THE HON'BLE SRI JUSTICE T.AMARNATH GOUD



             + CIVIL REVISION PETITION No.1193 OF 2020


                     % DATED 21st JANUARY, 2021


# Karre Narsimulu

                                                         ... Petitioner

                                Vs.

$ Gaddamidi Siddaiah and 11 Others
                                                       .. Respondent



<Gist:



>Head Note:
VIJAY B PAROPAKARI



! Counsel for the Petitioner          Sri Vijay B Paropakari


^Counsel for the Respondent           Sri A Krupadhar Reddy



? CASES REFERRED:
1 2015 (2) ALT 484
2 2018 (2) ALD 297
3 2020 (4) ALT 433 (DB) (TS)
4 (2008) 8 SCC 671
5 (2013) 5 ALD 376
6 2015 (6) ALD 483
                                  3




         HON'BLE SRI JUSTICE T. AMARNATH GOUD

                     CRP No.1193 OF 2020
ORDER:

1 This Civil Revision Petition, under Article 227 of the

Constitution of India, was directed against the order dated

12.10.2020 passed in I.A.No.777 of 2019 in A.S.No.20 of 2015

on the file of the Court of the VIII Additional District Judge,

Medak, wherein and whereby the appellate Court dismissed the

said I.A. filed by the petitioner seeking to appoint an Advocate

Commissioner.

2 The facts germane for consideration in this Civil Revision

Petition, in nutshell, are that respondent herein filed O.S.No.74

of 2008 on the file of the Court of the Junior Civil Judge, Medak,

for permanent injunction restraining the petitioner herein and

others from interfering with the land in Sy.No.30/AA

admeasuring Ac.1-00 guntas of Chegunta village. The case of

the respondent being the plaintiff in the said suit was that he

purchased the suit schedule property from one G.Muthyalu

through registered document No.1865/2008 dated 22.7.2008

for a consideration of Rs.30,000/- and ever since he has been in

possession and enjoyment of the same. However, since the

petitioner herein and others are trying to interfere with his

possession over the said property without any manner of right,

he filed the suit seeking permanent injunction. The petitioner

herein and three others filed written statement stating that one

Ramaiah was the original owner of the suit land to an extent of

Ac.3-12 guntas in Sy.No.30 out of which he sold Ac.0-10 gunts

each to the petitioner and other defendants in the suit through

ordinary sale deed and the sale was regularized by Tahsildar,

Chegunta after recording the statement of said Ramaiah under

Section 13-B, vide proceeding No.B/4694/05. The petitioner

further stated that subsequently the property was transferred in

the name of Muthyalu S/o Ramaiah. The respondent herein,

having fully known about the execution of sale deed in favour of

the petitioner by Ramaiah, got executed the sale deed in his

favour from said Muthyalu.

3 The trial Court, after framing appropriate issues,

recording evidence on both sides and hearing learned counsel

on both sides, decreed the suit in favour of the respondent

herein granting permanent injunction.

4 Aggrieved by the decree and judgment passed by the trial

Court, the petitioner and others preferred A.S.No.20 of 2015 on

the file of the Court of the VIII Additional District Judge, Medak.

During pendency of the appeal, the petitioner filed I.A.No.777 of

2017 under Order XXVI Rule 9 r/w Section 151 CPC, seeking

appointment of an advocate commissioner to survey the lands in

Sy.No.30, total extent of Ac.6-24 guntas and identify the land of

the petitioners and to note down the physical features and

measurements of land with the help of surveyor. The case of the

petitioner was that the trial Court in its judgment held that

when the entire extent of Sy.No.30 is more than Ac.6-00 guntas

and the extent of land claimed by both parties is only Ac.2-00

guntas, the point that both parties are having land cannot be

ruled out and it is their duty to get it surveyed with surveyor.

Therefore, advocate commissioner may be appointed to survey

the respective lands of the parties. The respondent herein filed

his counter denying the pleadings of the petitioner contending

that the petitioner did not take any steps before the trial Court

to appoint an advocate commissioner to survey and demarcate

the lands in Sy.No.30 to an extent of Ac.6-24 guntas and to

identify the lands of the petitioner and note down the physical

features of the land etc.

5 The appellate Court by order dated 12.10.2020 dismissed

the I.A.No.777 of 2020, which is impugned herein, observing

that advocate commissioner cannot be appointed to collect and

gather evidence in respect of suit schedule property of either

parties to establish who is in possession of which land and that

in a suit for permanent injunction the parties to the litigation

should establish their possession by way of evidence both oral

and documentary; that the petitioner filed the petition at a

belated stage when the appeal is coming up for arguments. As

stated supra, aggrieved thereby the petitioners/appellants/

defendants preferred this Civil Revision Petition.

6 The respondent / plaintiff filed his counter denying the

material averments made by the revision petitioner, contending

that only in order to protract the litigation, the petitioner filed

the present Civil Revision Petition but nothing else, that too

when the appeal is coming for arguments.

7 Attacking the finding given by the appellate Court, the

learned counsel for the petitioner argued that when there is

serious dispute with regard to the location of the land, advocate

commissioner can be appointed.

8 Heard the learned counsel for the respondent.

9 Now the point for consideration is can there be an order of

appointing Advocate Commissioner in a suit for injunction at

appellate stage?

10 POINT: As seen from the schedule of property, as was

mentioned in the plaint, the respondent claims to be owner and

possessor of land admeasuring Ac.1-00 guntas out of Ac.3-12

guntas in Sy.No.30/AA purchased from one Mutyalu S/o

Ramaiah, whereas the petitioners herein claim that their vendor

Ramaiah was the original owner of an extent of Ac.3-12 guntas

and that the said Ramaiah sold Ac.0-10 guntas each to the

petitioners. It is an admitted fact that the total extent of

Sy.No.30 is Ac.6-24 guntas. The extent of the respondent is

Ac.1-00 whereas the extent of the petitioners, is Ac.0-10 guntas

each totalling to Ac.1-00. Even if the extent of both parties is

taken as a whole, it would not be equivalent to the entire extent

of the Sy.No.30 which is Ac.6.00 and odd. Therefore, if an

advocate commissioner is appointed, it would sub serve the

issue clinching in this case i.e. whether the entire survey No.30

is one single plot of Ac.6.00 and odd or whether it is sub-divided

into 30AA or some other. Therefore, in order to put a quietus to

the litigation appointment of advocate commissioner is

necessary.

11 It was held in Arvind Kumar Agarwal vs. Legend Estates (P)

Ltd., rep. by its Managing Partner, Kokapet Village, Ranga Reddy

District1, that ordinarily, in a suit for injunction, Advocate

Commissioner is not appointed to gather evidence. Only in cases

where there is a serious dispute regarding identity of the

property or boundaries thereof, an Advocate-Commissioner can

be appointed even in the suits filed for injunction. As is in the

case on hand, where the parties to the litigation claim that their

properties situate in different survey numbers, certainly, to

come to a just conclusion that in which survey number the

lands of the respective parties are situated, appointment of an

advocate commissioner is necessary. The object in appointing

the advocate commissioner is to survey the lands of the parties

in Sy.No.30, but not to ascertain or cause any enquiry as to who

is in possession of which property. Therefore, it does not

amount to collection or fishing of evidence. Of course, the

Commissioner cannot be directed to ascertain which party is in

possession of which survey number. That aspect has to be

established by the parties with the aid of the evidence to be let

in during the course of trial.

12 In Shameem Begum vs. Vennapusa Chenna Reddy and

Another2 it was held that:

The impugned dismissal order of the lower Court, under a mistaken impression and without even reading properly the Order

1 2015 (2) ALT 484 2 2018 (2) ALD 297

XXVI Rule 9 and Section 75 C.P.C., says the purpose of appointment of an advocate commissioner sought to note down the physical features regarding possession of property cannot be allowed as a party cannot be allowed to fish out evidence by appointment of a commissioner. The lower Court did not even notice the distinction between fishing out information (which is not permissible) and collection of evidence (which is permissible). What is prohibited of fish out information by commissioner is X or Y stated to him at the time of inspection A or B in possession and the like. It is not prohibited of apparently visible physical features (which is even collection of evidence).

13 In Smt. P. Sreedevi vs. IVLN Venkata Lakshmi Narasimha

Prasad3 a Division Bench of this Court by following the principle

laid down in Haryana Waqf Board v. Shanti Sarup4, Badana

Mutyalu and Ors. vs. Palli Appalaraju5 and Jajula Koteshwar

Rao vs. Ravulapalli Masthan Rao6 held that if it was a case of

demarcation of the disputed land, it was appropriate for the

court to direct the investigation by appointing a Local

Commissioner under Order 26 Rule 9 CPC.

14 Further, the finding of the appellate Court that the

petitioners have not taken any steps to file an application at an

earlier stage and that they approached with the application for

appointment of advocate commissioner at a belated stage is