Kanne Satyanarayana vs Arelli Venkata Laxmi
2023 Latest Caselaw 3817 Tel

              HON'BLE SRI JUSTICE K. LAKSHMAN

            CIVIL REVISION PETITION No.2368 OF 2023

ORAL ORDER:

      Heard Mr. Ajay Kumar Madisetty, learned counsel for the

petitioners and Mr. MVM Avaneendra, learned counsel for the

respondent.

2. This revision is filed under Article - 227 of the Constitution of

India challenging the order dated 02.08.2023 in I.A. No.259 of 2023 in

A.S. No.100 of 2022 passed by learned I Additional District Judge,

Warangal.

3. The respondent - Plaintiff had filed a suit vide O.S. No.363 of

2007 against the petitioners herein - defendants seeking recovery of

possession, mandatory and perpetual injunctions in respect of schedule

'A' and 'B' properties i.e., eviction of the defendants from suit schedule

'B' property and hand over the vacant possession of the same to her and

also a direction to the defendants to remove the unauthorized and

illegally raised pillars and basement over the suit schedule 'B' property

and restraining the defendants and their agents from interfering with her

exclusive and peaceful possession over the suit schedule 'A' property in

any manner.

KL,J CRP No.2368 of 2023

4. The said suit was decreed on 29.01.2016. Feeling aggrieved by

the same the petitioners herein have preferred an appeal vide A.S. No.21

of 2016 (New A.S. No.100 of 2022). During pendency of the said

appeal, the petitioners herein have filed an application vide I.A. No.259

of 2023 under Order - XXVI, Rule 10A read with Section 151 of CPC

seeking to appoint an Advocate Commissioner to measure, demarcate

and fix the extent in Survey No.213/E of Ursu Village, Khila Warangal

Mandal of Warangal District, on the following grounds:

a) Land in Survey No.213/E of Ursu Revenue Village is only

Acs.1.11 guntas. During the life time of their father, at the

intervention of the elders, their father had partitioned the

property, whereby 1/3rd share had given to the plaintiff and

2/3rd share was kept to his share and subsequently on the death

of their father, 2/3rd share fell to the petitioners herein equally.

Thus, the respondent herein has got 17 guntas while the

petitioners herein got 17 guntas each which comes to Acs.1.11

guntas;

b) The respondent has sold 7 guntas out of her share;

c) The respondent mala fidely and dishonestly claiming that the

land in Survey No.213/E is in excess of Acs.1.11 guntas and

KL,J CRP No.2368 of 2023

claims that she got 27 guntas and also claims that the

petitioners herein got 27 guntas each, which is incorrect;

d) According to the petitioners, the total extent is Acs.1.11

guntas, whereas according to the respondent, it is Acs.2.01

guntas; and

e) In order to resolve the said issue, it is just and necessary to

appoint an Advocate Commissioner to fix the actual extent in

Survey No.213/E, and no prejudice would be caused to the

respondent. They were not advised by their earlier advocate

to seek such a relief.

5. The aforesaid application was resisted by the respondent on the

following grounds:

a) The petitioners had adduced all the voluminous evidence

during trial and they were given ample opportunity to that

effect. Despite the same, the petitioners did not seek such a

relief;

b) In order to set a new case, the petitioners have filed the

aforesaid application;

c) In order to drag the matter, the petitioners filed a frivolous

application;

KL,J CRP No.2368 of 2023

d) The petitioners have fullest knowledge with certainty about suit

schedule 'A' and 'B' properties and the rough sketch appended

to the plaint. Therefore, now they cannot be permitted to

contend that appointment of advocate commissioner is

necessary to survey the land; and

e) Pursuant to the partition, the respondent was allotted Ac.0.27

guntas of land in Survey No.213/E and the same had been duly

entered into Revenue Records long back and had been

accorded with pattadar passbooks. The petitioners never

challenged the same and tried to illegally dispossess her from

'A' schedule property and in fact she was dispossessed from

'B' schedule property.

6. Vide the impugned order, dated 02.08.2023, the trial Court

dismissed the said application on the following grounds:

a) The suit was disposed of after full-fledged trial and on merits;

b) The appeal was preferred against the said judgment in the year

2016;

c) After a period of almost seven years, the petitioners have come

up with the said application;

KL,J CRP No.2368 of 2023

d) This is not the stage to decide the issue of the petitioners as the

stage of appeal is not for collection of evidence;

e) It appears that to protract the matter, the petitioners have filed

the petition when the main appeal was posted for arguments;

and

f) There are no merits in the application and the same is liable to

be dismissed;

7. Mr. Ajay Kumar Madisetty, learned counsel for the petitioners,

by placing reliance on the decisions in Haryana Waqf Board v. Shanti

Sarup 1; Bandaru Mutyalu v. Palli Appalaraju 2 and P. Sreedevi v.

IVLN Venkata Lakshmi Narsimha Prasad 3 would submit that the

application filed by the petitioners seeking appointment of

Commissioner is maintainable at the stage of appeal. Under certain

circumstances as narrated in P. Sreedevi3, Advocate Commissioner can

be appointed. The said facts were not considered by the trial Court while

dismissing the application filed by the petitioners herein. The petitioners

have also filed two (02) more Interlocutory Applications i.e., I.A.

Nos.167 and 168 of 2002 in A.S. No.100 2022, seeking to receive certain

. (2008) 8 SCC 671

. 2013 (6) Alt 26 (SB)

. 2020 (6) ALD 99 (TS) (DB)

KL,J CRP No.2368 of 2023

additional documents. The appellate Court without disposing the said

applications, dismissed the above application erroneously.

8. On the other hand, Mr. MVM Avaneendra, learned counsel for

the respondent, placing reliance on Penta Urmila v. Karukola

Kumaraswamy 4 rendered by the combined High Court of Andhra

Pradesh at Hyderabad, would submit that the present application filed by

the petitioners during pendency of appeal under Order - XXVI, Rule

10A of CPC is not maintainable.

9. Perusal of the record would reveal that during pendency of the

aforesaid suit, the petitioners have filed an I.A. in the month of February,

2013, seeking appointment of an Advocate Commissioner to note down

the existing valuable stocks of the petitioner in the petition schedule

property. The said application was also filed on the same lines. The

respondent has filed copies of the affidavit and petition along with the

counter. However, she did not have the details of its result. In the light of

the same, this Court directed Mr. Ajay Kumar Madisetty, learned

counsel for the petitioners, to get specific instructions on the same. On

instructions, he would submit that the petitioners have filed the said

application, but it was neither numbered nor decided in accordance with

. 2005 (2) ALD 130

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law. Having filed the said application, it is the duty of the petitioners to

pursue the same. If the trial Court fails to take up the application and

pass appropriate orders, it is for the petitioners to take necessary steps in

accordance with law. But, they failed to do so.

10. As rightly held by the appellate Court in the impugned order

that both the parties have adduced their evidence by examining the

witnesses and filing the documents, and on consideration of the

evidence, both oral and documentary, the trial Court decreed the suit.

The petitioners herein have preferred an appeal challenging the said

judgment. The impugned judgment and decree in O.S. No.363 of 2007

is dated 29.01.2016. Though the petitioners have filed the appeal in the

year 2016, they have filed the present application only in the month of

July, 2023 i.e., after lapse of seven years. It is also relevant to note that

in the appeal grounds, the petitioners herein did not raise any ground that

despite filing the aforesaid application seeking appointment of advocate

commissioner, the trial Court did not consider the same. The aforesaid

facts would reveal that the petitioners herein are trying to collect the

evidence during pendency of the appeal which is impermissible.

11. In the light of the aforesaid discussion, the impugned order is

a reasoned order and well-founded and it does not require interference by

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this Court in the present revision. The present revision fails and the

same is liable to be dismissed.

12. The present Civil Revision Petition is accordingly dismissed.

However, liberty is granted to the petitioners to request the appellate

Court to decide I.A. Nos.167 and 168 of 2022 in accordance with law,

and it is for the appellate Court to consider the same and pass appropriate

orders in accordance with law. In the circumstances of the case, there

shall be no order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pending in the

revision shall stand closed.

_________________ K. LAKSHMAN, J 10th November, 2023 Mgr