Telangana High Court
Cholleti Papi Reddy vs Briimghi Surender on 31 October, 2022
Bench: P.Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
CIVIL REVISION PETITION NO.1464 OF 2022
ORDER
This Civil Revision Petition is filed challenging the order of the
Senior Civil Judge, Jangaon in I.A.No.127 of 2017 in O.S.No.28 of 2016
dt.16.06.2022 dismissing the application filed by the petitioner under Order
XXVI Rule 9 r/w Section 75 CPC for appointment of an Advocate
Commissioner for measuring the land and fixing boundaries in the suit
schedule properties.
2. The petitioner is defendant No.4 in the suit, while respondent No.1
is the plaintiff and respondents 2 to 5 are the other defendants in the suit,
i.e., O.S.No.28 of 2016. The suit was filed for cancellation of registered
documents bearing No.519 of 2016 and 2013 of 2016 and consequential
injunction in respect of land as mentioned in schedule-E of the suit in
Survey Nos.80 and 81 of Jangaon Village and Mandal. The plaintiff had
stated that he had purchased the subject land from the successors in interest
of the petitioner/defendant No.4 through registered sale deeds and was in
possession of the same and subsequently converted the same from
agricultural to non-agricultural land and sold certain pieces of land and was
in possession of the balance of land. It is submitted that by filing the suit,
C.R.P.No.1464 of 2022
the plaintiff had sought permanent injunction against the defendants
therein. It is submitted that the petitioner, who is defendant No.4, on
coming to know about the suit, has filed I.A.No.127 of 2017 seeking
appointment of an Advocate Commissioner for measuring the land and
fixing boundaries in the schedule property in the interest of justice. It is
submitted that the Senior Civil Judge, Jangaon vide orders dt.16.06.2022
has dismissed the same and therefore, the present CRP is filed.
3. Learned counsel for the petitioner submitted that the petitioner is the
original owner of the land in Survey Nos.80 and 81 of Jangaon Village and
respondent No.1 though has purchased and sold certain pieces of land, is
now claiming to be in possession of the land which is owned and possessed
by the petitioner herein. It is submitted that only to bring a quietus to the
litigation and also to establish the boundaries of the land which is owned
and possessed by the petitioner herein/defendant No.4, the petitioner has
sought for appointment of an Advocate Commissioner. The learned
counsel for the petitioner has referred to the averments made in I.A.No.127
of 2017. He also placed reliance upon the judgment of this Court in the
case of P.Sreedevi Vs. IVLN Venkata Lakshmi Narsimha Prasad1 in
support of his contentions that when there is a dispute of localisation or
2020 (6) ALD 99 (TS) (DB)
C.R.P.No.1464 of 2022
demarcation of property, the best course of action is to appoint an
Advocate Commissioner/Surveyor for localisation. He therefore prayed for
setting aside of the order of the Senior Civil Judge, Jangaon and a direction
to the Civil Court to appoint an Advocate Commissioner by allowing
I.A.No.127 of 2017 as prayed for.
4. Though the respondents have filed caveat and are represented by a
counsel, none appears for the respondents on 29.07.2022 when the case
was taken up for hearing. In view of the urgency expressed by the learned
counsel for the petitioner, the matter was heard and orders are passed as
under.
5. It is found that the suit is filed for cancellation of a registered
agreement of sale cum GPA with possession dated 21.01.2016, vide
document No.519 of 2016 and sale deed dated 21.03.2016 vide docmunt
No.2013 of 2016 by declaring them as null and void and to consequently to
grant perpetual injunction restraining defendants 1, 2 and 3 from
interfering with the E schedule property. From the above prayer in the
suit, it is clearly seen that the possession of the property by the defendants
is not doubted, but it is only their title over the said property which is being
challenged by seeking cancellation of the registered sale deeds. Defendant
No.4, who is the petitioner herein, is claiming to be owner and possessor of
C.R.P.No.1464 of 2022
the land which he claims to have sold in favour of defendants 1, 2 and 3.
He submits that he had already fixed the boundaries at the time of sale and
is willing to measure the land and fix the boundaries again before the
Advocate Commissioner. The Civil Court has dismissed the I.A. by
holding that the burden lies on the petitioner/defendant No.4 and the 1st
respondent/plaintiff to prove their contention, to show the extent of land
they own, the extent of land sold away by them and the remaining land,
through cogent and convincing oral and documentary evidence. It is also
held that it is the duty of the parties to prove their title and possession over
the suit schedule property and it is not the duty of the Court to measure the
land and fix the boundaries in the suit schedule property during the
pendency of lis and collect the evidence on behalf of the parties to show
whether any land is available to parties to lis after they sold away the same
as plots as stated by them.
6. Though the learned counsel for the petitioner has placed reliance
upon the judgment of this Court in the case of P.Sreedevi Vs. IVLN
Venkata Lakshmi Narsimha Prasad (1 supra), this Court finds that the
same is distinguishable on facts. In the said case, the suit was filed for
declaration of title to the plaint schedule property and for a decree to be
passed in favour of the plaintiffs therein for recovery of possession if the
C.R.P.No.1464 of 2022
respondents are found to be in possession of the suit schedule property.
Whereas, in the present case, the suit was filed for cancellation of sale
deeds and for perpetual injunction in respect of land mentioned in the sale
deeds. Therefore, the said judgment would not be applicable to the facts of
the case before this Court. This Court does not find any reason to interfere
with the findings of the trial Court and the order of the trial Court in
I.A.No.127 of 2017 in O.S.No.28 of 2016 dt.16.06.2022 is confirmed.
7. The Civil Revision Petition is accordingly dismissed. No order as to
costs.
8. Pending miscellaneous petitions, if any, in this CRP shall stand
closed.
___________________________
JUSTICE P. MADHAVI DEVI
Date: 31 .10.2022
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