Boddu Ramulu vs Kishti Kishan
2022 Latest Caselaw 6350 Tel

     THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU


       CIVIL REVISION PETITION.No.1503 OF 2021



ORDER :

This Civil Revision Petition has been filed by the

petitioner who is the plaintiff in O.S.No.32 of 2021 on the

file of Principal Junior Civil Judge, Armoor, under Article

227 of Constitution of India against the order of the trial

Court in I.A.No.279 of 2021 dated 13.09.2021 by which the

trial Court appointed an Advocate Commissioner to

conduct survey and measure the suit schedule property

with the help of Assistant Director, Land Revenue and

Survey Records.

2. The petitioner herein has filed main suit vide

O.S.No.32 of 2021 for perpetual injunction in respect of

land in survey No.295/39 of Babanagar of Nizamabad

District. He has also filed an interlocutory application vide

I.A.No.71 of 2021 and sought for temporary injunction in

respect of the above referred suit schedule property. The

respondents herein who are defendants in the main suit

have filed a petition under Order 26 Rule 9 C.P.C. vide

CRP No.259 of 2021

I.A.No.279 of 2021 and sought for appointment of Advocate

Commissioner for conducting survey and to measure the

suit schedule property.

3. In support of the petition, 1st defendant in the main

suit has filed his affidavit and averred that the boundaries

of the suit schedule property in Sy.No.295/39 and the

boundaries in Sy.No.295/39, 54 and 55 shown in the

sketch map filed by the defendants are one and the same.

The plaintiff has been claiming ownership over the property

in Sy.No.295/39 by showing the said property abutting to

road running from Kuppakal to Babanagar and according

to the defendants, the land in Sy.No.295/39 is non-

agricultural land. It is "orre" (rivulet or low lying area).

Even if it is believed that in Sy.No.295/39 was assigned to

the plaintiff it is not located by the side of the road. The

plaintiff has nothing to do with the land in Sy.Nos.295/52,

54 and 55 which was kept for grazing cattle by the villagers

of Babanagar. The plaintiff is an influenced person. He has

kept an evil eye on the above land, and filed false suit to

knock away the land covered in Sy.Nos.295/52, 54 and 55.

He has filed false sketch map to mislead the Court as if the

CRP No.259 of 2021

suit property is located in Sy.No.295/39. The plaintiff

having shown the suit survey number as 295/39 trying to

knock the land covered by S.No.295/52, 54 and 55 which

is a compact block to each other.

4. Therefore, to prove actual existence of the land, they

sought for appointment of Advocate Commissioner who can

be directed to measure the land with the help of Surveyor

and to fix the boundaries.

5. The plaintiff has opposed the petition filed counter

claiming that he has got exclusive right over the land in

Sy.No.295/39. The petition filed by the defendants is not

tenable under Law. The request made by them in the

petition is beyond the purview of the Court. Since the

plaintiff filed suit for perpetual injunction, the only

question that assumes significance is whether the plaintiff

is in possession and enjoyment of the suit property, the

burden squarely rests upon the plaintiff to prove his

possession. The appointment of Advocate Commissioner to

note down the physical features or to undertake the other

related activities in a suit for injunction is rarity. The

parties cannot be permitted to gather evidence to prove

CRP No.259 of 2021

their possession and the party who came to the Court with

a request for injunction has to satisfy the Court through

oral and documentary evidence. The respondent/plaintiff

has stated that the appointment of Commissioner at the

instance of defendant is still a rare phenomenon.

Therefore, such an appointment cannot be made at the

threshold. Appointment of Commissioner to measure the

property amounts to collection of evidence. Therefore, the

plaintiff sought for dismissal of the petition.

6. Learned trial Court having heard both parties and

having considered the record, allowed the application and

appointed an Advocate as Commissioner to survey and

measure the suit property with the help of Assistant

Director, Land Revenue and Survey Records.

7. Being aggrieved by the said order, the petitioner has

filed the present revision and challenged the order of the

trial Court on the ground that the trial Court failed to

appreciate the judgment relied on by the counsel for the

plaintiff. The trial Court could not distinguish the prayer in

I.A.No.279 of 2021 and I.A.No.71 of 2021. The Court below

failed to appreciate that the grounds pleaded by the

CRP No.259 of 2021

defendants does not established the purpose of

appointment of Commissioner for localization of the land in

Sy.No.295/39 and lands in Sy.Nos.295/53, 55 and 56.

Therefore, according to the plaintiff, such an appointment

is ultimately without looking into the request assigned by

the petitioner, thereby the plaintiff sought for setting aside

the order.

8. Heard both parties.

9. Now the point for consideration is:

Whether the order of the trial Court suffers from any infirmity, if so, whether the same can be set aside while exercising the jurisdiction under Section 227 of Constitution of India.

10. POINT:

Learned counsel for the petitioner herein has

submitted that the plaintiff has filed main suit for

perpetual injunction and he supposed to prove his case by

oral and documentary evidence. There is no responsibility

or burden on the defendants to prove the claim of the

plaintiff is baseless. If the plaintiff is not able to prove his

CRP No.259 of 2021

title, definitely, his suit will be dismissed. Therefore, the

Court below committed an error in allowing the application

filed by the defendants and appointed Commissioner for

conducting survey which amounts to collection of evidence.

11. On the other hand, learned counsel for the

respondents/defendants having placed reliance on

judgment between Haryana Waqf Board vs Shanti

Sarup and others reported in 2008 (8) SCC 671, Arvind

Kumar Agarwal vs. Legend Estates (P) Limited in CRP

No.3756 of 2014 from the Hon'ble High Court of Telangana

and Andhra Pradesh and Rajendran vs Lilly Ammal @

Nelli Ammal and another in CRP No.1028 of 1997.

12.   The    main      suit     has      been     filed     by        the

respondent/plaintiff      for        perpetual      injunction          in

Sy.No.295/39 of Babanagar Village. As per the schedule

filed along with the plaint, the suit property is shown

within the following boundaries :

North: Internal Road and then Land of Gundaiah South:Internal Road and then land of Sura Limbanna East :Internal Road West :Main Road

CRP No.259 of 2021

13. The plaintiff has claimed that he was a landless poor

and Government assigned suit land to him and his name

was entered in the revenue records. He has also pleaded in

the plaint that he got the land surveyed with the help of

Inspector of Survey and land records and got fixed the

boundaries to this patta land.

14. The defendants have disputed the plaint averments,

allotment of suit land and location of Ac.04-00 gts within

the above referred boundaries. They have also claimed

that the land in Sy.No.295/39 is a rivulet and people are

using the said land for the cattle grazing. According to the

defendants, the land in Sy.No.295/39 is not abutting to the

road as claimed by the plaintiff and property shown in the

above boundaries is in fact in Sy.Nos.295/52, 295/54,

295/56.

15. Therefore, even if it is accepted that the plaintiff was

granted a patta for Ac.04-00 gts and if it is in

Sy.No.295/39, it is necessary to note whether it exactly

located within the boundaries shown in the plaint or

whether it is situated in Sy.Nos.295/52, 54 and 56 as

CRP No.259 of 2021

alleged by the defendants. Therefore, the exact location of

the property that was given to the plaintiff by way of alleged

patta has to be ascertained. It is also required to know

whether the land shown in the suit schedule i.e., within the

four boundaries mentioned by the plaintiff is in Sy.Nos.

295/52, 54, 56 as claimed by the defendants. The

defendants have claimed that the property described in the

plaint schedule is actually a rivulet and it is a pastor land

or being used for the purpose of grazing the cattle by all the

villagers. The suit filed by the plaintiffs was for a perpetual

injunction. It is true, the plaintiff is supposed to prove his

title and possession on the property and there is no

necessity for the defendants to disprove the claim of

plaintiff. However, in view of the above peculiar

circumstances, it is quite necessary to identify the property

that is given to the plaintiffs and it is quite necessary to

know whether the said Ac.04-00 gts is in Sy.No.295/39

and whether it is situated within the boundaries mentioned

by the plaintiff. Similarly, it is quite necessary to locate the

property and to identify whether it is a rivulet and within

the Sy.Nos.295/52, 54 and 56. Even if a Commissioner is

CRP No.259 of 2021

appointed with a direction to locate this land i.e., to

conduct survey with the help of tippon and tonch map, it

may not be amounting to collection of evidence.

16. As per the pleadings of both parties, it is clear that

the plaintiff is claiming right on Ac.04-00 gts of land by

virtue of a patta and he has claimed that the property is

abutting the main road with other internal roads on the

remaining three sides. Therefore, it is very much essential

to locate the property. The learned trial Court while

appreciating this point in a correct way, directed

appointment of a Commissioner with a particular

instruction to conduct survey and fix the boundaries with

the help of Assistant Director, Land and Survey records

and also with the help of tippon and tonch map, such an

exercise by the Commissioner and Assistant Director will

certainly help the Court to come to a correct conclusion

and it may not cause any prejudice to the rights and

contentions of the plaintiffs. Therefore, there is no

necessity to interfere with the order of the Court below and

present C.R.P. is liable to be dismissed.

CRP No.259 of 2021

17. In the result, the revision is dismissed.

18. Consequently, Miscellaneous applications if any, are

closed. There shall be no order as to costs.

___________________________________ JUSTICE SAMBASIVA RAO NAIDU

Date:02.12.2022 PSSK/PLV