Shaik Hasan Bin Samad vs Mandala Ravinder Reddy
2023 Latest Caselaw 4088 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI

          CIVIL REVISION PETITION NO.1331 OF 2023

                               ORDER

This Civil Revision Petition (CRP) is filed against the order of the

Senior Civil Judge at Asifabad dt.20.02.2023 in I.A.No.211 of 2022 in

O.S.No.13 of 2018.

2. The petitioner is the plaintiff in O.S.No.13 of 2018 which is filed

for declaration of title and recovery of possession of the suit schedule A

to D plots out of Survey No.143/E/1 of Boregaon Village of

Kaghaznagar Mandal, Kumram Bheem Asifabad District admeasuring

Ac.1.35 cents. The plaintiff has filed I.A.No.211 of 2022 seeking

appointment of an Advocate Commissioner under Order 26 Rule 9 read

with Section 151 of CPC assisted by any technical man from the Survey

and Settlement Department to find out whether the suit plots A to D are

part of Survey No.143/E/1 or part of Survey No.103 of Kothapet Village

of Kaghaznagar Mandal and to report the same to meet the ends of

justice. The same was contested by the respondents and thereafter, the

trial Court has observed that the appointment of an Advocate

Commissioner is not permissible in the circumstances mentioned C.R.P.No.1331 of 2023

therein. Thus, I.A.No.211 of 2022 was dismissed, against which the

present CRP is filed.

3. Learned counsel for the petitioner reiterated the submissions

made in the I.A. and submitted that the petitioner was the owner and

possessor of the suit schedule land, but the respondents, in their

counter/written statement, have taken a plea that the suit schedule plots

are not part of Survey No.143/E/1 of Boregaon Village or part of Survey

No.103 of Kothapet Village and that they are in lawful possession of the

respondents. The learned counsel for the petitioner submitted that since

the contention of the respondents has been that they are in possession of

the suit plots which are in Survey No.103 and not in Survey No.143/E/1,

the same have to be surveyed by a Technical person from the Survey

and Settlement Department and have to be measured and identified by

an Advocate Commissioner. He submitted that the lower Court has

erroneously dismissed the application for appointment of an Advocate

Commissioner. He therefore prayed for allowing the I.A.

4. Learned counsel for the respondents, on the other hand,

supported the order of the lower Court and submitted that the

respondents had filed their written statement immediately, i.e., on C.R.P.No.1331 of 2023

16.08.2019, whereas the present Application has been filed on

13.10.2022 only to protract the litigation. It is submitted that the

plaintiff himself has mentioned that Dr. Ratnam Sunitha had purchased

the suit schedule property through a registered sale deed bearing

No.1120/2003 dt.11.08.2003 from its owner Sri Suman Kumar Varma

and later, one Kotagiri Shankar Goud purchased it on 22.02.2007

through a registered sale deed bearing No.586/2007 and that on

11.06.2008, the plaintiff purchased the said property through registered

sale deed bearing Document No.1719/2008 and obtained possession

from Kotagiri Shankar Goud and the said registered sale deed was

effected for mutation and also for issuance of pattedar passbooks and

that the revenue officials verified the record and conducted spot enquiry

and implemented the registered sale deed by effecting mutation on his

name and that the plaintiff got the said land converted from agricultural

land into non-agricultural land through Proc. RC No.A/272/2015

dt.16.03.2015 issued by the Tahsildar, Kaghaznagar and he got approval

for construction of Jubilee garden function hall on 18.03.2015 and he

left passage of 35 cents abutting the wall of that building for using it as

parking place and kept two gates to the wall for that purpose. Therefore,

the plaintiff is clearly stating that he is aware of the boundaries of the C.R.P.No.1331 of 2023

property and that he is in possession of the property and that the

respondents are claiming his land in Survey No.103 of Kothapet Village.

5. In view of the same, the properties appear to be in different areas

and the petitioner/plaintiff is not disputing it. The plaintiff is claiming

that he is in possession of the property and therefore, he has to prove his

right by leading evidence in support of his contentions and cannot gather

evidence by appointment of an Advocate Commissioner.

6. The learned counsel for the respondents placed reliance upon the

judgment of a Division Bench of the High Court of Judicature at

Hyderabad for the States of Telangana and Andhra Pradesh in the case

of Sarala Jain and others Vs. Sangu Gangadhar and others 1,

wherein the Court has observed that where the relief in the plaint is only

to confirm the boundaries since the property was already demarcated

twice, appointment of Advocate Commissioner for the same purpose

does not arise. It was observed that if the suit is filed for fixing

boundaries by the Court, then appointment of Advocate Commissioner

would serve purpose to decide the real controversy between the parties

but it is not even the case of the petitioner that schedule property is not

2016 (3) ALD 197 C.R.P.No.1331 of 2023

demarcated and in such case, appointment of Advocate Commissioner is

wholly unnecessary and it is beyond the scope of the suit. Since the said

facts are similar to the facts of the case before this Court, the judgment

of the Coordinate Bench is also applicable to the facts of this case.

7. Therefore, this Court does not find any reason to interfere with

the order of the lower Court.

8. The Civil Revision Petition is accordingly dismissed. No order

as to costs.

9. Pending miscellaneous petitions, if any, in this CRP shall also

stand dismissed.

                                         ___________________________
                                         JUSTICE P. MADHAVI DEVI


Date:    17.11.2023
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