Telangana High Court

K.Shivaji vs Mahareddy Ram Reddy And Another on 24 January, 2022

Bench: G Sri Devi

             THE HONOURABLE JUSTICE G. SRI DEVI

                       C.R.P. No. 1670 of 2021

ORDER:

The present Civil Revision Petition is filed by the petitioner/

1st defendant under Article 227 of the Constitution of India,

aggrieved by the order, dated 14.09.2021, passed in I.A.No.254 of

2021 in I.A.No.47 of 2021 in O.S.No.40 of 2021 on the file of the

I-Additional Junior Civil Judge, Mahabubnagar, wherein and

whereunder an application filed under Order 26 Rule 9 read with

Section 151 of C.P.C. seeking appointment of an advocate-

commissioner to locate the suit schedule property on the spot

considering the boundaries mentioned in the sale deeds filed in the

present suit and O.S.Nos.35 of 2021, 42 of 2021 and 43 of 2021, was

dismissed.

The petitioner is the 1st defendant, 1st respondent is the

plaintiff and the 2nd respondent is the 2nd defendant before the trial

Court. For the sake of convenience, the parties are referred to as

arrayed before the trial Court.

The plaintiff filed O.S.No.40 of 2021 for perpetual injunction

restraining the defendants from causing illegal interference of the

plaintiff's peaceful and legal possession over the suit schedule land.

Along with the suit, the plaintiff also filed I.A.No.47 of 2021 seeking

ad-interim temporary injunction against the defendants. The

petitioner, who is the 1st defendant before the trial Court, filed

I.A.No.254 of 2021 for appointment of an advocate-commissioner.

It is stated in the affidavit filed in support of the said petition, that

while he was working in Indian Army, he purchased an open plot

to an extent of 299.71 square yards out of a layout made in

Sy.Nos.814 and 815 situated at Nawabpet Village h/o.

Yenmangandla Sivar, Nawabpet Mandal, Mahabubnagar District.

On 05.09.2020 and 03.01.2021, when the plaintiff along with others

had interfered with his possession over the plot, the 1st defendant

filed O.S.No.35 of 2021 against them seeking injunction as the

property in the said suit is different from that of the property

claimed by the plaintiff. It is further stated that the suit schedule

properties in O.S.No.35 of 2021, O.S.No.40 of 2021 and O.S.No.43 of

2021 filed by one G.Pavani are part and parcel of the lands in

Sy.Nos.814 and 815 and the original owner of the said lands is one

and the same. Therefore, for proper and effective adjudication of

all the suits, appointment of an advocate commissioner to locate the

suit schedule properties on the spot with the assistance of Mandal

Surveyor or Licensed Surveyor in order to resolve the dispute

among the parties in the said suits is just and necessary and that no

prejudice would be caused to the plaintiff.

The plaintiff filed counter stating that with a view to collect

evidence and to protract the matter, the 1st defendant filed the

present application seeking appointment of an advocate-

commissioner. It is further stated that order 26 Rule 9 C.P.C. does

not provide any provision to appoint an advocate commissioner to

locate the properties and as such the petition is not maintainable.

After considering the rival submissions made on behalf of the

parties, the trial Court dismissed the said petition. Challenging the

same, the present Civil Revision Petition is filed.

Heard the learned Counsel appearing on behalf of the parties

and perused the record.

Learned Counsel for the petitioner/1st defendant submits

that the trial Court failed to appreciate that there is a dispute with

regard to the identification of the property and that as there is a

controversy as to the identification, location or measurement of

land, appointment of an advocate-Commissioner is just and

necessary. He further submits no prejudice would be caused to the

plaintiff if an advocate-commissioner is appointed.

Learned Counsel for the 1st respondent/plaintiff would

submit that the suit is filed for permanent injunction and the

present petition is filed only for collection of evidence and,

therefore, appointment of an advocate-commissioner is not

necessary.

A perusal of the material on record would show that the 1st

respondent herein filed O.S.No.40 of 2021 for perpetual injunction

restraining the revision petitioner and the 2nd respondent herein

from interfering with his possession and enjoyment over the suit

schedule property. Along with the suit, the 1st respondent filed

I.A.No.47 of 2021 seeking ad-interim temporary injunction. The

record further discloses that the revision petitioner herein filed

O.S.No.35 of 2021 against the 1st respondent herein and eight others

for declaration of title and for perpetual injunction. One

P.Srinivasulu Goud, who is shown as defendant No.8 in O.S.No.35

of 2021, filed O.S.No.42 of 2021 against the revision petitioner and

another for perpetual injunction and one G.Pavani, who is shown as

defendant No.9 in O.S.No.35 of 2021, filed O.S.No.43 of 2021 against

the revision petitioner and another for perpetual injunction. The

record further discloses that there is a dispute with regard to the

identification of the schedule property in all the suits. In all the

suits, the plaintiffs therein claimed that they are the owners and

possessors of the suit schedule properties therein. Admittedly, all

the suits were clubbed along with the present suit for conducting

joint trial.

In Bandana Mutyalu and another v. Palli Appalaraju1 a

learned Single of this Court, while dealing with the aspect of

appointment of an advocate-commissioner before trial, held as

under:

(2013) 6 ALT 26

"Where there is controversy as to identification, location or measurement of the land, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared. The party against whom the report may have gone may choose to adduce evidence in rebuttal."

In Haryana Wakf Board v. Shanti Sarup and others2 the

Apex Court held that in a case where demarcation of the disputed

land is warranted, it would be appropriate for the Court to direct

investigation by appointing a local investigator under Order XXVI

Rule 9 of C.P.C.

In Pilli Yadaiah and others v. Pilli Komraiah and others3

another learned Single Judge of this Court, while dealing with the

application for appointment of commissioner, held as under:

"The appointment of Advocate-Commissioner to note the physical features in view of the contradictory stands taken by the parties is essential to avoid voluminous oral evidence."

Having regard to the judgments referred to above and taking

into consideration the fact that there is a dispute with regard to the

identification of the property, appointment of advocate-

commissioner to locate the suit schedule property on the spot

considering the boundaries mentioned in the sale deeds filed in

O.S.Nos.40 of 2021, 35 of 2021, 42 of 2021 and 43 of 2021, does not

(2008) 8 SCC 671

(2013) 6 ALT 158

amounts to collection of evidence, but on the other hand it would

help to avoid voluminous oral evidence.

Accordingly, the Civil Revision Petition is allowed setting

aside the order, dated 14.09.2021, passed in I.A.No.254 of 2021 in