Telangana High Court

Paderu Ramchander vs Dr.Patlola Surender And Another on 7 September, 2022

Bench: A.Abhishek Reddy

        THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

           CIVIL REVISION PETITION No.1396 of 2022

ORDER:

The present Civil Revision Petition is filed challenging the

dismissal order dated 09.05.2022 passed by the Principal Junior

Civil Judge-cum-Judicial First Class Magistrate, Medak, in

I.A. No.223 of 2022 in I.A. No.657 of 2021 in O.S. No.187 of 2021,

whereby the learned Judge dismissed the application filed by the

petitioner-plaintiff for appointment of an Advocate Commissioner.

Learned counsel for the petitioner has stated that the trial

Court, contrary to the well established principles of law laid down

by this Court as well as the Hon'ble Supreme Court, has dismissed

the I.A. filed for appointment of an Advocate Commissioner.

Learned counsel has further stated that the petitioner, who is the

plaintiff in the suit, has filed the suit to declare him as the absolute

owner of the suit schedule property i.e. land admeasuring Ac.0-31

guntas in survey No.1102 of Pillikotal @ Pillikotla, Medak Mandal

and District; to direct the defendants to remove all the illegal

structures construed in the land admeasuring Ac.0-08 guntas out

of Ac.0-31 guntas in survey No.1102; to grant permanent

injunction against the defendants or any persons claiming through

them from interfering with the suit schedule property; and to pay

costs of the suit. Learned counsel for the petitioner has stated that 2 AAR, J C.R.P. No.1396 of 2022

the respondents herein are arrayed as defendants in the said suit

and a written statement has been filed by defendant Nos.1 and 2 in

the suit mainly stating that their land admeasuring Ac.0-08 guntas

is falling in survey No.1342 only and they are not claiming any

land in survey No.1102. Therefore, to resolve the boundary dispute

between the parties, the application for appointment of an

Advocate Commissioner has been filed by the petitioner-plaintiff to

demarcate the boundaries of survey Nos.1102 and 1342 and to

find as to whether the defendants have encroached the land of the

petitioner in survey No.1102 or not. But, the trial Court without

application of mind, without properly appreciating the issue

involved in the present litigation has dismissed the I.A. filed by the

petitioner in a mechanical manner. Learned counsel has also

drawn the attention of the Court to the findings given by the trial

Court while dismissing the I.A. whi9ch on the face of it are totally

wrong and contrary to the pleadings of the parties.

Per contra, the learned counsel for the respondents has

stated that the respondents do not want to file any counter and

argued the matter on merits. The learned counsel has contended

that the trial Court has rightly dismissed the I.A. as the

appointment of an Advocate Commissioner would amount to

gathering of evidence and the same is impermissible in law laid,

the various judicial pronouncements of the Hon'ble Supreme Court 3 AAR, J C.R.P. No.1396 of 2022

as well as this Hon'ble Court in a catena of cases holding that an

Advocate Commissioner cannot be appointed for the purpose of

noting the physical features of the suit schedule properties as it

would amount to gathering of evidence. Learned counsel has

stated that the petitioner herein as to first establish his case by

leading evidence and after completion of the trial, the trial Court is

still of the opinion that the issue between the parties to the suit

cannot be resolved based on the evidence available on record, then

only the question of appointing an Advocate Commissioner would

arise. Learned counsel has further stated that the petitioner has

already approached the Revenue and Survey departments seeking

demarcation of his survey number. Therefore, the question of

appointing an Advocate Commissioner for the very same purpose is

unwarranted and prayed this Court to dismiss the present Civil

Revision Petition with costs.

Perused the material on record.

A perusal of the impugned order shows that admittedly there

is a boundary dispute with regard to the lands claimed by the

petitioner as well as the respondents. The petitioner is claiming

the land in survey No.1102 to an extent of Ac.0-31 guntas whereas

respondents are claiming the land in survey No.1342 to an extent

of Ac.0-08 guntas. This Court as well as the Hon'ble Supreme

Court in a number cases have held that when there is a dispute 4 AAR, J C.R.P. No.1396 of 2022

with regard to the boundaries, the best method by which the issue

can be resolved is by appointment of an Advocate Commissioner,

who with the help of local Mandal Surveyor or the Assistant

Director concerned, can demarcate the said survey numbers

claimed by the parties and find out if the allegations of any

encroachment by the other side are true or not. The finding of the

trial Court that there is no dispute with regard to the location and

identity of the property is absolutely incorrect. As per the

pleadings of the parties, they are claiming land in two different and

distinct survey numbers. Therefore, the question of there being no

dispute with regard to the location and identity of the subject

properties does not arise. The trial Court based on the village map

has observed that the road leading from Medak to Chegunta is on

the straight line and the same is intervening survey numbers 1342

and 1102 whereas the report of the Tahsildar vide Lr.B/1038/2022

dated 10.03.2022 shows that the total extent of the land in survey

No.1342 is Ac.0-33 guntas and the existing Medak road is not

tallying with the road, as per the village map, that survey No.1342

is on the west side of the road as per the village map whereas after

formation of the existing road, the part of the land in survey

No.1342 is on the eastern side of the present road and that there is

a change in the alignment of the road. The trial Court further

observed that the position of the land in survey No.1342 would 5 AAR, J C.R.P. No.1396 of 2022

change and cannot be expected to be the same as in the village

map. The said observations are without any legal basis and

factually incorrect.

Irrespective of the fact whether there is any change in the

alignment of the road or not, the location and boundaries of any

survey number will not change. The question as to whether the

respondents have encroached any land in survey No.1102 or not

can only be answered if the boundaries of survey No.1102 as well

as 1342 are surveyed and demarcated on ground. Once the

boundaries are fixed, the question as to whether the respondents

have encroached into the land of the petitioner can be decided

based on survey sketch prepared by the Advocate Commissioner.

The Hon'ble Supreme Court in Haryana Waqf Board and

others vs. Shanti Sarup and others1, at paras 4 to 8, has held

as under:

"Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 C.P.C.

The appellate Court found that the trial Court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorized possession in

1 (2008) 8 SCC 671 6 AAR, J C.R.P. No.1396 of 2022

respect of the suit land by them as per Para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial Court was wrongly rejected.

It is also not in dispute that even before the appellate Court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land. For the reasons aforesaid, we are of the view that the High Court ought to have considered this aspect of the matter and then to decide the second appeal on merits. Accordingly, we set aside the judgment and decree passed in the second appeal and the second appeal is restored to its original file. The High Court is requested to decide the second appeal in the light of the observations made hereinabove within six months from the date of supply of a copy of this order to it. The appeal is thus allowed. There will be no order as to costs."

In Pennamma Vally vs. Achutan Unni2, a Division Bench

of Kerela High Court has held as under:

"It is of frequent occurrence, especially in cases where the disputed line of division runs between waste lands which have not been subject of definite possession, that no satisfactory evidence is obtainable. That circumstance

2 KERLT-1966-0-86 7 AAR, J C.R.P. No.1396 of 2022

cannot relieve the Court of the duty of settling a line, upon the evidence which is laid before it. The ordinary rule regarding the onus incumbent on the plaintiff has really no application to cases of that kind. The parties to the suit are in the position of counter-claimants; and it is the duty of the defendant, as much as of the plaintiff, to aid the Court in ascertaining the true boundary. Where any other rule recognized, the result might be that some boundaries would be incapable of judicial settlement."

In Laxman Sabanna Athani vs. Mahadev Babu

Bastawade and another3, the Karnataka High Court (Circuit

Bench at Dhrawad) reiterated the same principle that

Commissioner can be appointed, when there is dispute regarding

boundary, to demarcate the property with the help of Assistant

Director of Land Record etc., and Commissioner report can be

relied upon in the absence of any mala fide attached to the officer.

For the afore-stated reasons and in view of the ratio laid

down in the above referred judgments, the impugned order dated

09.05.2022 passed by the Principal Junior Civil Judge-cum-

Judicial First Class Magistrate, Medak, in I.A. No.223 of 2022 in

I.A. No.657 of 2021 in O.S. No.187 of 2021, is hereby set aside and

the trial Court is directed to appoint an Advocate Commissioner to

demarcate the lands in survey Nos.1102 and 1342 for conducting

survey and demarcate the lands of the parties with the help of the

8 AAR, J C.R.P. No.1396 of 2022

Mandal Surveyor to find out if any land of the petitioner has been

encroached by the respondents or not.

Accordingly, the Civil Revision Petition is allowed.