Akula Mallappa And 3 Others vs Gangishetty Bikshapathi And 5 ...
2022 Latest Caselaw 6020 Tel

THE HON'BLE SRI JUSTICE MUMMINENI SUDHEER KUMAR

           CIVIL REVISION PETITION NO.928 OF 2022

ORDER:

Heard Mr. Singam Bhagaiah, learned counsel for the

petitioners and Mr. Srinivasa Rao Sirikonda, learned counsel for

the respondents.

2. This Civil Revision Petition is filed against an order dated

02.02.2022 passed in I.A.No.1078 of 2021 in O.S.No.141 of

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

Gajwel, whereby an Advocate-Commissioner was appointed for

the purpose of conducting survey and locate the suit survey

number, measure and demarcate the lands of the petitioners

and respondents therein. The operative portion of the order

reads as under:

"In the result, this petition is allowed and the advocate commissioner is appointed at a cost of Rs.5,000/- and further the advocate commissioner is directed to take help of mandal surveyor and locate the suit survey number and measure and demarcate the lands of the petitioners and respondents with the documents of petitioners and respondent by considering the land used for road from each extent and to note down the physical features with the help of a village map and also get a map drawn to appropriate scale by the surveyor as part of the commission and take pictures prior to and after demarcating the lands."

3. The said I.A. was filed by the respondents herein, who are

the plaintiffs in the suit. The suit in O.S.No.141 of 2020 was

filed by the respondents herein, seeking a decree for permanent

injunction restraining the petitioners herein, who are the 2 MSK,J C.R.P.NO.928 OF 2022

defendants in the suit and their agents etc., from interfering

with the plaintiffs' possession over an extent of Ac.0.05 gts in

Survey No.351 and its various sub-division numbers i.e., the

suit schedule property.

4. From the contents of the plaint in the suit and the

averments contained in the written statement filed by the

defendants, it is seen that there is no much dispute about the

title of the respective parties over the extents of land being

claimed by them as owners. From the plaint, it is also seen that

in January, 2020, the Inspector of Survey and Land Records,

Siddipet, demarcated Survey No.351 and fixed boundaries and

the first defendant is also stated to have been present at the

time of survey and signed on the panchanama. The dispute

that arises for consideration in the said suit is only with regard

to possession of the plaintiffs over the suit schedule property

and the alleged interference by the defendants over the alleged

possession of the plaintiffs. But the present I.A.No.1078 of

2021 is filed with the following prayer:-

"The present petition is filed by petitioners under Order XXVI Rule 9 R/W.Sec. 151 of the Code of Civil Procedure, 1908 (Hereinafter "CPC"), praying this Court to appoint an advocate as commissioner to get Sy.No.351 demarcated by a technical person and fix the boundaries of land by separating the land of the petitioners with that of the respondents."

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                                               C.R.P.NO.928 OF 2022

5. As already noted above, the property that is the subject

matter of suit is only Ac.0.05 gts in Survey No.351 but the I.A.

in question was filed for demarcating and for fixing boundaries

in respect of the land admeasuring Ac.1.12 gts belonging to the

defendants and in respect of the land admeasuring Acs.3.35 gts

belonging to the plaintiffs. Thus, the relief sought in the I.A. is

beyond the scope of the suit itself. The plaintiffs, who asserted

their possession and title over the suit schedule property

approached the Court complaining that the defendants are

interfering with their possession and sought for permanent

injunction against the defendants from interfering with the

possession of the plaintiffs. Therefore, it is for the plaintiffs to

establish their possession over the suit schedule property and

the alleged interference by the defendants by adducing

appropriate evidence and succeed or fail on the same. Whether

there is any boundary dispute between the parties with

reference to their different extents of land is not a matter that

would fall for consideration in the said suit. But the trial Court

clearly fell in error in recording a finding that there is a dispute

as to the boundary and that need to be resolved in order to

decide the lis that is pending before the said Court.

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                                               C.R.P.NO.928 OF 2022

6. In the considered view of this Court, the boundary dispute

is not a matter that would fall for consideration in a suit for

injunction and it is only the possession of the plaintiff that is

required to be established in order to succeed in the suit. No

doubt, incidentally, the issue of title may also be gone into but

there is no such necessity in the present case as there is no

dispute about the title of the respective parties and the extents

that is being claimed by them. Further, reliance that is placed

by the trial Court in the case of Badana Mutyalu & Badana

Laxminarayana v. Palli Appalaraju1 for the preposition that

there is no bar in appointing an Advocate-Commissioner in a

suit for injunction is totally erroneous. There being no bar for

appointing of Advocate-Commissioner in an injunction suit can

never be a ground to appoint an Advocate-Commissioner in an

injunction suit without there being such necessity and factual

basis. Further, it is for the plaintiff to establish his case and

then succeed in the suit or fail.

7. As already noted above, in the plaint itself, there is a

reference to a survey that was conducted by the Inspector of

Survey and Land Records in the month of January, 2020. The

plaintiff, instead of placing the said survey report on record and

1 2013(5) ALD 376 5 MSK,J C.R.P.NO.928 OF 2022

establishing his case, filed the present I.A. for fixing boundaries

for the extents of land being claimed by the plaintiffs and

defendants respectively though such extents of land are not part

of suit schedule property. Thus, this Court is of the considered

view that the attempt of the plaintiffs in seeking appointment of

Advocate-Commissioner for the relief as noted above is nothing

but gathering evidence and in fact, no such demarcation or

fixing of boundaries is required in order to decide the suit. It is

settled law that the parties to a suit cannot be permitted to

gather evidence by seeking aid of the Court by appointing

Advocate-Commissioner instead of establishing their case by

adducing appropriate evidence on their own.

8. Thus, the reasoning given by the trial Court stating that

the boundary dispute is required to be resolved in the suit is

totally erroneous and in fact the said issue does not fall for

consideration at all in an injunction suit.

9. The reliance that is placed by the learned counsel for the

respondents on the judgments of this Court in P.Sreedevi v.

IVLN Venkata Lakshmi Narsimha Prasad2 and Adarsh

Constructions v. Qamaarunnissa Begum and another3 are of

no avail, as the said cases were considered in the facts and

2 2020(6) ALD 99 (TS)(DB) 3 2022(4) ALD 112 (TS) 6 MSK,J C.R.P.NO.928 OF 2022

circumstances of the said cases and the appointment of

Advocate-Commissioner in those cases in respect of the suit

schedule property in the said suits unlike in the present case.

As already noted above, in the present case, the Advocate-

Commissioner is appointed for the purpose of conducting

survey, demarcation and fixing of boundaries in respect of

properties, which is not the suit schedule property.

10. For the aforesaid reasons, the order under revision is

totally unsustainable. Accordingly, the same is set aside and

the Civil Revision Petition is allowed.

There shall be no order as to costs. Miscellaneous

applications, if any, pending shall stand closed.

_____________________________________ (MUMMINENI SUDHEER KUMAR, J)

21st November 2022 RRB