Goddeti Saidulu vs Gunda Kalyani
2022 Latest Caselaw 3237 Tel

     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


          CIVIL REVISION PETITION NO.339 OF 2022


                              ORDER

This Civil Revision Petition is filed under Article 227 of the

Constitution of India challenging the order dt.03.01.2022 in I.A.No.857

of 2021 in O.S.No.401 of 2021 dismissing the application filed by the

petitioners/defendants under Order XXVI Rule 9 read with Section 151

CPC to appoint an Advocate Commissioner to measure the suit land

with the help of a Government Surveyor and to ascertain whether the

suit land is situated within the boundaries of the survey numbers as

claimed by the respondent/plaintiff.

2. Brief facts are that the petitioners herein are defendants in

O.S.No.401 of 2021 on the file of the Principal Junior Civil Judge at

Suryapet. The suit was filed for a perpetual injunction in respect of the

suit schedule property, i.e., residential open house plot No.2 in Survey

Nos.95 and 98 admeasuring 1500 square yards situated at Kudakuda

Revenue Shivar Village, Chivemla Mandal, Suryapet District. The

petitioners herein/defendants in the suit filed a written statement C.R.P.No.339 of 2022

disputing the averments made in the plaint, more particularly denying

the title of the respondent/plaintiff. The trial was yet to commence and

meanwhile, the claim of the petitioners herein is that the plaintiff is

trying to grab the property of the petitioners herein without any right and

title over the property and filed the suit by suppressing true facts. In

order to determine the boundaries of the suit schedule property, the

petitioners have filed I.A.No.857 of 2022 in O.S.No.401 of 2021 for

appointment of an Advocate Commissioner.

3. By order dt.03.01.2022, the Principal Junior Civil Judge,

Suryapet, dismissed the I.A. by holding that the petitioners/defendants

failed to produce any documents to show that they are owners and

possessors of the suit land as against the copy of the registered sale deed

bearing Document No.6072 of 2010 dt.12.07.2010 filed by the plaintiff

in support of purchase of the suit schedule property. It is further held

that the boundaries are mentioned in the registered sale deed and from

the said boundaries, it is clear that the land of the wife of defendant No.1

is not situated as boundary to the suit land and that the

petitioners/defendants have made allegations against the respondent/

plaintiff by disputing her title over the suit schedule land without having C.R.P.No.339 of 2022

any documentary evidence. The trial Court held that in a suit for

permanent injunction, the Court prima facie has to see the title and

possession of the parties by the date of filing of the suit and the

defendants have to file necessary documents and produce evidence to

prove their possession and title by the date of filing of the suit. Since the

defendants failed to do so, the issue cannot be treated as a boundary

dispute and there is no necessity to appointment an Advocate

Commissioner as prayed for.

4. Challenging the impugned order in the I.A., the present CRP is

filed.

5. Learned counsel for the petitioners, Sri V. Rohit, submitted that

since the suit is filed by the plaintiff, the onus is on her to prove the title

and possession over the suit schedule property. He drew the attention of

this Court to the location map filed by the petitioners at page 54 of the

CRP papers and submitted that the location map and indexation and

blackening of certain portion showing it as the suit property are not

correct and in order to determine the actual boundaries of the plot,

appointment of an Advocate Commissioner is necessary. He submitted C.R.P.No.339 of 2022

that the trial Court has erroneously shifted the burden of proof to the

petitioners/defendants to establish their right over the property.

6. The learned counsel for the petitioners also placed reliance upon a

judgment of this Court in the case of Smt. P. Sreedevi Vs. IVLN

Venkata Lakshmi Narasimha Prasad1, wherein it was held that when

there is a dispute of localization or demarcation of property, the best

course of action is to appoint an Advocate Commissioner / Surveyor for

localisation.

7. In spite of service of notice, none appeared for the

respondent/plaintiff.

8. Having regard to the contentions raised by the petitioners in

I.A.No.857 of 2021 in O.S.No.401 of 2021 and also the judgment of this

Court in the case of Smt. P. Sreedevi Vs. IVLN Venkata Lakshmi

Narasimha Prasad (1 supra), this Court is of the opinion that since

there is a dispute with regard to the boundaries of the suit schedule

property and the plaintiff is seeking permanent injunction against the

petitioners herein/defendants, there is every reason as to why an

2020 (4) ALT 433 (DB) (TS) C.R.P.No.339 of 2022

Advocate Commissioner/Surveyor is to be appointed for localisation of

the property. Without determining the actual boundaries of the suit

schedule property, injunction cannot be granted.

9. In the result, the Civil Revision Petition is allowed and

consequently, I.A.No.857 of 2021 in O.S.No.401 of 2021 on the file of

the Principal Junior Civil Judge, Suryapet is also allowed. No order as to

costs.

10. Pending miscellaneous petitions, if any, in this CRP shall stand

closed.

___________________________ JUSTICE P. MADHAVI DEVI

Date: 01.07.2022 Svv