Smt. Faimida Begum vs Shaik Sahbbar Ahmed
2021 Latest Caselaw 1862 Tel

IN THE HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD

                               ****

                      C.R.P.No.922 of 2021



Between:

Smt.Faimida Begum & another
                                                           Petitioners
                            VERSUS


Shaik Sahbbar Ahmed & others


                                                      Respondents



           JUDGMENT PRONOUNCED ON: 29.6.2021

       THE HON'BLE SRI JUSTICE T.AMARNATH GOUD

1.   Whether Reporters of Local newspapers

     may be allowed to see the Judgments?              : Yes




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?                :    No



                                          _________________________

                                           T.AMARNATH GOUD, J
                                      2




           * THE HON'BLE SRI JUSTICE T. AMRNATH GOUD


             + CIVIL REVISION PETITION No.922 OF 2021

%        29.6.2021



#      Smt.Faimida Begum & another
                                                           PetitionerS
                                VERSUS


$      Shaik Sahbbar Ahmed & others


                                                          Respondents



!      Counsel for Petitioner            M/s.Pasam Srinivas Reddy &
                                         Sk.Asif Pasha




^      Counsel for the respondents                --




<GIST:




> HEAD NOTE:




? Cases referred


1 12015 (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.922 OF 2021

ORDER:

1 This Civil Revision Petition, under Article 227 of the

Constitution of India, was directed against the order dated 01.6.2021

passed in I.A.No.1227 of 2020 in I.A.No.805 of 2020 in O.S.No.322 of

2020 on the file of the Court of the Principal Junior Civil Judge,

Sangareddy, wherein and whereby the trial Court allowed the said I.A.

filed by the respondent Nos.1 to 3 herein / plaintiffs seeking to

appoint an Advocate Commissioner.

2 The facts germane for consideration in this Civil Revision

Petition, in nutshell, are that respondent Nos.1 to 3 herein filed

O.S.No.322 of 2020 on the file of the Court of the Principal Junior

Civil Judge, Sangareddy, for permanent injunction restraining the

petitioners herein and others from interfering with the land in

Sy.No.346/AA/2 admeasuring Ac.0-085 guntas of Kalvakunta village.

The case of the respondents being the plaintiffs in the said suit was

that they and one R.V.Goverdhan Naik are the joint pattedars, owners

and possessors of open land bearing Sy.No.346/AA/2 admeasuring

Ac.0.10 ½ gts, situated at Kalvakunta, Sangareddy Mandal and

District. Originally the said survey number belong to Manne

Narsimlu, Manne Shivunamma and Manne Krishna all are residents

of Kalvakunta from whom they purchased the said land under

registered sale deed No.1908 of 2010 on 05.3.2010 for a total sale

consideration of Rs.5,25,000/- and since then they are in peaceful

possession and enjoyment of the same. The petitioners and said

Goverdhan Naik are having their undivided shares in the suit land to

the extent of 50% to Petitioner No.1, Petitioners 2 and 3 and

Goverdhan Naik are having 16.66% each. The said Sy.No.346/AA to

the extent of Ac.0-08 ½ guntas is the subject matter of the suit.

3 It is further submitted that since the petitioners herein and

others are trying to interfere with their possession over the said

property without any manner of right, the respondent NOs.1 to 3 filed

the suit seeking permanent injunction. The respondents/plaintiffs

filed I.A.No.1227 of 2020 under Order XXVI Rule 9 CPC, seeking

appointment of an advocate commissioner to survey the suit schedule

plot with the assistance of Government surveyor and locate the same

immediately since the petitioners herein are disputing the location of

the suit schedule plot and claiming right over it.

4 The petitioners herein filed their counter denying the pleadings

of the respondents / plaintiffs by contending that the respondents are

neither owners nor possessors of land in Sy.No.346/AA and without

possession of any piece of land, the suit for perpetual injunction is

not maintainable. The respondents / plaintiffs nor their vendors are

not in possession of the subject land at any point of time. Further,

the petition for appointment of advocate commissioner to know the

exact location of suit schedule property is filed only to collect the

evidence as there is no vacant land in Sy.No.346. Hence prayed to

dismiss the petition.

5 The trial Court by order dated 01.6.2021 allowed the

I.A.No.1227 of 2020, which is impugned herein, observing that there

is a serious dispute with respect to localization of suit property and in

such circumstances appointment of advocate commissioner to survey

the land and demarcate the suit property is necessary and such

procedure by the advocate commissioner would not amount to

collection of evidence but would help the court to resolve the issue

between the parties. As stated supra, aggrieved thereby the

petitioners/respondents /defendants preferred this Civil Revision

Petition.

6 Attacking the finding given by the trial Court, the learned

counsel for the petitioners argued that appointment of advocate

commissioner to know the exact location of suit schedule property is

filed only to collect the evidence as there is no vacant land in

Sy.No.346.

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

appointing Advocate Commissioner in a suit for injunction at

appellate stage?

8 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.

9 As is in the case on hand, where the petitioners herein contend

that the suit for perpetual injunction is not maintainable because

there is a serious dispute of title. However, as per the prayer of the

petition filed by the respondents herein, it is for surveying the suit

survey number and to locate the suit schedule property because there

is dispute with respect to location of the property. Therefore,

certainly, to come to a just conclusion that where the lands of the

respective parties are situated, appointment of an advocate

commissioner is necessary.

1 2015 (2) ALT 484

10 The object in appointing the advocate commissioner is to

survey the lands of the parties in Sy.No.346/AA, 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.

11 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 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).

12 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.

13 Having regard to the facts and circumstances of the case and

the principle enunciated in the case cited supra, I am of the

considered opinion that the impugned order does not require any

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

interference. The trial court has gone into this aspect in right

perspective. Hence the Civil Revision Petition is liable to be dismissed.

14 In the result, the Civil Revision Petition is dismissed confirming

the order dated 01.6.2021 passed in I.A.No.1227 of 2020 in

I.A.No.805 of 2020 in O.S.No.322 of 2020 on the file of the Court of

the Principal Junior Civil Judge, Sangareddy. No order as to costs.

Miscellaneous petitions, if any, pending in this Civil Revision Petition

shall also stand dismissed.

__________________________ T. AMARNATH GOUD, J.

Date:    .6.2021.

L.R.Copy be marked.

B/o Kvsn