Telangana High Court

Sikha Krishna vs Adi Swapna on 28 November, 2023

     HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI

      CIVIL REVISION PETITION Nos. 59 & 85 of 2023

COMMON ORDER:

The issue involved in both the revision petitions is

one and the same and the parties are almost common.

Therefore, they are heard together and being disposed of by

this common order.

2. These two Civil Revision Petitions are preferred by the

defendants aggrieved by orders dated 07.12.2022 in I.A.

No.2 of 2022 in O.S. No. 143 of 2017 and I.A. No. 2 of 2022

in O.S. No. 144 of 2017, both dated 07.12.2022 passed by

the Principal Junior Civil Judge-cum-Judicial Magistrate of

First Class at Kothagudem. By the impugned orders, the

applications filed by the defendants under Order 26 Rule 9

read with Section 151 C.P.C. to appoint an Advocate-

Commissioner to locate the suit schedule properties i.e.,

Plot Nos. 17 and 18, with the help of Mandal Surveyor, in

order to ascertain whether they are in Sy. No.802 or Sy.

No. 805 were dismissed.

3. The facts of the case are that the respondent in

C.R.P. No. 59 of 2023, claiming to be the owner and

possessor of Plot No. 17 and the respondent in C.R.P. No.

85 of 2023, claiming to be the owner and possessor of Plot

No. 18, instituted suits in O.S. Nos.143 and 144 of 2017

respectively, against the defendants, revision petitioners

herein, seeking perpetual injunction. According to them,

they are the owners and possessors of the suit schedule

properties, which are vacant house sites to an extent of

266.66 sq.yds. each in plot Nos. 17 & 18 in Sy. Nos. 805,

situated at Paloncha Revenue Village, Paloncha Town &

Municipality, Khammam District. The revision petitioners-

defendants contested the suit by filing their written

statement contending that no survey number with 805,

described by the plaintiff, was available in the revenue

records of Paloncha. Necessary issues were framed and

trial was commenced. The evidence on the side of plaintiff

was closed and after adducing the evidence on behalf of

defendants, when the matter was posted for defendants'

further evidence, I.A. No. 1 of 2022 in O.S. No. 143 of 2017

came to be filed by the defendants seeking appointment of

an Advocate-Commissioner with similar relief as sought for

in the impugned I.A. i.e., to locate the suit schedule plot

with the help of Mandal Surveyor. Upon allowing the said

I.A. on 26.07.2022, the matter, at the instance of the

plaintiff in O.S. No. 143 of 2017, was carried in revision

before this Court in C.R.P. No. 1730 of 2022. By orders

dated 22.09.2022, this Court allowed the revision setting

aside the orders of the trial Court in appointing the

Advocate-Commissioner with an observation that the trial

Court can appoint the Advocate-Commissioner only after

adducing the evidence by the defendants, if it considers

necessary. Thereafter, the evidence on the side of

defendants was closed on 01.08.2022. Hence, in view of

the observations made by this Court in the above C.R.P.,

the defendants, revision petitioners herein filed I.A. Nos. 2

of 2022 in both the suits with the similar relief as sought

for in I.A. No. 1 of 2022 in O.S. No. 143 of 2017. On

contest, the trial Court dismissed both the I.As. with

separate orders of even date holding that it is not a fit case

to appoint Advocate-Commissioner to undertake

localization of the suit schedule properties. Hence, the

defendants are before this Court by way of present

revisions.

4. The learned counsel for the petitioners submits that

the learned trial Court failed to appreciate the fact that in a

suit for injunction, the main criteria is possession to decide

if the relief of injunction could be granted or declined. The

trial Court failed to take into consideration that it is the

specific case of the revision petitioners that the land

claimed by the plaintiff, respondent herein does not bear

the Survey number 805 which is strengthened as per

Ex.B.1, letter, issued by the Mandal Revenue Officer to the

effect that no such survey number is in existence.

Inasmuch as possession is pre-requisite to grant relief of

injunction and as the plaintiff is claiming possession on

the basis of Survey Number 805, which is non-existing

survey number as per revenue records, the trial Court

ought to have appointed Advocate-Commissioner to resolve

the dispute in effective manner.

5. On the other hand, the learned counsel appearing on

behalf of the plaintiff, respondent in both the revisions,

contends that as the revision petitioners, defendants, failed

to adduce any evidence nor filed any documents in proof of

their title or right or possession in their evidence, the trial

Court has rightly dismissed the I.As. and therefore, the

impugned orders need no interference by this Court.

6. Heard both the learned counsel and perused the

material available on record.

7. The point that arises for consideration in these

revisions is whether the impugned orders passed by the

trial Court in rejecting the request of the revision petitioners

for appointment of Advocate-Commissioner to undertake the

localization of the suit schedule properties suffer from any

infirmity?

8. Admittedly, this Court in C.R.P. No. 1730 of 2022

while setting aside the orders of the trial Court in

appointing Advocate-Commissioner, made an observation

that the trial court can appoint the Advocate Commissioner

only after the defendants adduced their evidence, if it

considers necessary, as the same would not amount to

gathering of evidence. What necessitated this Court to

make such an observation is that the suit, at that

particular point of time, was coming up for further

evidence of defendants. Equally, it was also observed at

para No. 13 that "only after defendants adduced their

evidence, if the court still considers necessary to appoint an

advocate commissioner, then the court below can appoint

the advocate commissioner...".

9. Before the trial Court, it is the specific case of the

revision petitioners, defendants that no survey number

with 805 is available at Paloncha revenue village and the

suit schedule Plots are part and parcel of Sy. No. 802 of

Sikha Mani's land and that they are cultivating the same.

To prove their case, they have relied on Exs.B.1 to B.4,

which are letters issued by the Mandal Revenue Officer,

judgment in O.S. No. 23 of 2018 and death certificate of

Mani. After disposal of C.R.P. No. 1730 of 2022, the

evidence on the side of defendants was closed. In the

impugned order, the trial Court specifically observed that

the defendants did not file any documents to establish

their right or interest over the suit schedule plots except

Exs.B.1 to B.4. Such being the case, the trial Court

observed that that as the revision petitioners, defendants

failed to adduce any documentary evidence showing their

right or interest in respect of the suit schedule plots, it is

not a fit case to appoint Advocate-Commissioner to

undertake localization of the property in question.

10. It is well settled law that in a suit for perpetual

injunction, the issue that falls for consideration is in

regard to the possession of the suit property and that the

burden is on the plaintiff to establish his/her case by

adducing necessary oral/documentary evidence and it is

not for the defendants to disprove the case of the plaintiffs.

By placing reliance on a decision of this Court in Adarsh

Constructions, Hyderabad v. Qamaarunnissa Begum 1,

the learned counsel for the revision petitioners contends

that there is no absolute bar for appointment of Advocate-

Commissioner in a suit for injunction simplicitor. The

facts in the said decision are on a different footing. In that

case, the Advocate-Commissioner was appointed to localize

the schedule A & B properties and also to localize the

property covered by the registered sale deed, dated

2022 (3) ALT 662 (TS)

20.08.1965. Even the decision relied on by the learned

counsel for the petitioners in M. Yadaiah v. M.

Chilkamma 2 is not applicable to the facts of the case on

hand as the specific plea of the plaintiffs therein was that it

is not possible for them to show the existence of the road

by leading any evidence except by physical verification

which is possible only through appointment of an

Advocate-Commissioner. So also, the decision of the

Division Bench of this Court in Smt. A. Laxmamma v.

Smt. A. Venkatamma 3 is not applicable to the facts of the

case on hand. In the decision rendered by the composite

High Court of Andhra Pradesh in Dammalapati

Satyanarayana v. Datla Venkata Ramabhadra Raju @

D.V.R. Raju 4, which is relied on by the learned counsel for

the revision petitioners, it was observed at para No. 6 as

under:-

"6. The result of allowing the I.A. is that the Advocate Commissioner shall undertake localization of the suit schedule property with the help of a competent surveyor, basing on the title deeds of both the parties. it must be noted that the so-called title deeds must be accepted by the court in evidence, before they

2022 (2) ALT 80 (TS)

2016 (6) ALT 795 (D.B.)

2006 (4) ALD 675

constitute the basis for identification of the property. The admissibility, relevance etc., of the sale deeds can be undertaken only at the stage of recording evidence. The demarcation of the land with reference to location, survey numbers etc., must be with reference to the title deeds, which are admitted by the Court in evidence....".

(emphasis added)

11. In the case on hand, the trial Court recorded a

specific finding that though the evidence of defendants was

closed, they did not file any document to show their right

or interest over the subject matter of the property except

Exs.B.1 to B.4. Therefore, in the facts and circumstances

of the instant case, the impugned orders passed by the

trial Court dismissing the applications of the petitioners to

appoint an Advocate-Commissioner to locate the suit

schedule properties with the help of Mandal Surveyor to

ascertain whether the property is in Sy. No. 802 or 805 do

not suffer from any infirmity or illegality warranting