Karri Koteswara Rao vs Karri Viswanadham
2023 Latest Caselaw 3157 Tel

        THE HONOURABLE SRI JUSTICE K.LAKSHMAN

          CIVIL REVISION PETITION No.2337 OF 2023

ORDER:

Heard Mr.Mummaneni Srinivasa Rao, learned counsel for the

petitioners and Mr. Mallarapu Kiran Reddy, learned counsel appearing

for the respondent.

2. Assailing the order dated 23.06.2023 passed in I.A.No.44 of

2018 in I.A.No.365 of 2017 in O.S.No.101 of 2017 by the Additional

Junior Civil judge at Sathupally (for short, 'trial Court'), the petitioners

herein/defendants filed the present revision.

3. The respondent herein/plaintiff filed a suit vide O.S.No.101 of

2017 before the trial Court, against the petitioners/defendants herein for

perpetual injunction restraining the petitioners herein and their men

from interfering with the plaintiff's peaceful possession over the suit

schedule property i.e. the land to an extent of Ac.0.35guntas in

Sy.No.382/A/1 situated in Karaigudem revenue Village of Penuballi

Mandal, Khammam District, claiming that he is absolute owner and

possessor of the said property. He got the suit schedule property in

partition among the family members. Since the date of partition, he has

been in peaceful possession and enjoyment of the same without any

interruption since last 30 years. His name is also entered in revenue

records as pattadar and possessor of Sy.No.382/A/1. Title deed and

pattadar passbook were also issued in his favour. He has raising paddy

crop in the suit schedule property. The petitioners herein/defendants

without having any right, interest, title or whatsoever over the suit

schedule property, interfering with his peaceful possession and

enjoyment. On 25.08.2017 and on 28.08.2017, the defendants tried to

enter into the suit schedule property but the plaintiff resisted their

illegal acts. With the said contentions he has filed the said suit against

the petitioners/defendants for perpetual injunction.

4. In the said suit, the respondent has also filed an Interlocutory

Application vide I.A.No.365 of 2017 seeking ad interim injunction

restraining the petitioners herein from interfering with the possession

of the plaintiff over the suit schedule property.

5. During pendency of the said I.A.No.365 of 2017, the

petitioners herein/defendants filed a petition vide I.A.No.44 of 2018,

seeking appointment of Advocate Commissioner for the purpose of

ascertaining the survey number of the suit schedule property as the

same is not clearly mentioned by the plaintiff. The defendants stated

that father of the 1st defendant purchased the suit schedule property

located in Sy.No.342 of Karaigudem Revenue Village through an

agreement of sale dated 03.05.1965 from one Kalluru

Seetharamachander Rao. He has also filed relevant pahanies obtained

from Mee Seva Kendram and also the possessory sale agreement. The

plaintiff with the documents not relating to suit schedule property filed

the suit and also a petition for injunction. In fact, the suit schedule

property was acquired by father of 1st defendant and after death of his

father, he inherited the suit schedule land which is in Sy.No.342 of

Karaigudem revenue Village.

6. In I.A.No.44 of 2018, the plaintiff filed counter stating that the

suit schedule property is his ancestral property. He is the only son to

his father. After death of his father, he became the owner and possessor

of the suit schedule property as such there is no document of partition.

The name of the father of the 1st defendant was not found in the earlier

pahanies, but he has created the alleged agreement of sale recently for

the purpose of the suit. The suit schedule property is 382/A/1 but not

Sy.No.342. Since the suit schedule property is agricultural property,

there is no need to note down the physical features of the suit schedule

property and to ascertain the survey number. The defendants filed the

said petition only for collection of evidence. It is the settled law that

Advocate Commissioner cannot be appointed at initial stage for

collection of evidence.

7. The trial Court on hearing both sides and perusing the record,

vide impugned order dated 23.06.2023 dismissed I.A.No.44 of 2018 on

the grounds that I.A.No.365 of 2017 was already decided on merits

vide order dated 30.09.2019 during pendency of revision vide CRP

No.1507 of 2019. The said CRP was preferred against the earlier order

dated 27.12.2018 in I.A.No.44 of 2018. Though the defendants are

aware of the disposal of I.A.No.365 of 2017, did not bring the said fact

to the notice of the High Court in the said CRP. The disposal of the

said CRP is subsequent to the disposal of I.A.No.365 of 2017. Since

this Court is unaware of the disposal of said I.A.No.365 of 2017,

disposed of said CRP No.1507 of 2019 vide order dated 09.01.2020

directing the trial Court to restore I.A.No.44 of 2018 and decide afresh.

Since I.A.No.365 of 2017 in which the present I.A.No.44 of 2018 filed

was disposed of on 30.09.2019 granting interim injunction to the

plaintiff till disposal of the main suit and this Court has not passed any

orders for restoration of said petition, it is not possible to restore

I.A.No. 44 of 2018 and the same has become infructuous.

8. Aggrieved by the said order, the petitioners herein/defendants

have filed the present revision on the following grounds:-

i. The trial Court failed to appreciate that the survey number of the

petitioners/defendants is 342 and the extent is Ac.1.15gutnas,

whereas the plaintiff is claiming land in Sy.No.382/A/1 to an

extent of Ac.35gutnas, and the remaining extent of the land went

into the plaintiff's brothers share, the said aspect is lost sight by

the trial court.

ii. The suit filed by the plaintiff is with mala fide intention to grab

their property in Sy.No.342 and obtained ex parte injunction

order. Later filed amendment petition vide I.A.No.203 of 2018

seeking to amend the survey number as Sy.No.382/A/1 from

'238/A/1' and the same was allowed vide order dated 19.06.2018

but the plaintiff did not modify the survey number in the interim

injunction orders.

iii. The defendants have filed the said I.A.No.44 of 2018 to appoint

Advocate Commissioner to record the physical features of their

land and to ascertain the suit schedule property. The same was

dismissed vide order dated 27.12.2018. Against the said order,

the defendants filed revision vide CRP No.1507 of 2019. This

High Court disposed of the revision with a direction to the trial

Court to decide I.A.No.44 of 2018 afresh.

iv. The trial Court again dismissed the I.A.No.44 of 2018 on the

ground that the I.A.No.365 of 2017 in which I.A.No.44 of 2018

was already disposed of.

v. The impugned order is passed without application of mind.

vi. In view of the law laid down by this Court in Karre Narsimulu

vs Gaddamidi Diddaiah-(2013) 5 ALD 376, appointment of the

Advocate Commissioner is valid and necessary to adjudicate the

issue, since the parties are disputing the land in different survey

numbers.

9. With the said submissions, they sought to set aside the

impugned order.

10. Whereas, learned counsel for the respondent would contend

that the Court below considering the entire facts and also the order

dated 09.01.2020 in CRP No.1507 of 2019, dismissed the application

filed by the petitioners/defendants. There is no error in it. The

petitioners herein are trying to collect the evidence to defeat the claim

of the respondent. With the said submissions, he sought to dismiss the

present revision.

FINDING OF THE COURT:-

11. The aforesaid facts would reveal that the respondent/plaintiff

had filed the aforesaid suit vide O.S.No.101 of 2017 against the

petitioner herein seeking perpetual injunction. In the suit schedule,

initially, the survey number was mentioned as '238/A/1'. The

respondent/plaintiff had also field I.A.No.365 of 2017 in O.S.No.101 of

2017 seeking ad interim injunction order. TDuring the pendency of the

said application, the petitioners herein filed I.A.No.44 of 2018 under

Order XXVI Rule 9 read with 151 of CPC, to appoint an Advocate

Commissioner to record physical features of the suit schedule property

and also to ascertain survey number of the suit schedule property.

During pendency of the said application, the respondent/ plaintiff had

filed I.A.No.203 of 2018 to amend the survey number from '238/A/1 to

'382/A/1'. Learned Junior Civil Judge, Sattupally, allowed the said

application vide order dated 19.06.2018. There is no challenge to the

said order and it attained finality.

12. It is apt to note that the learned Principal Junior Civil Judge,

Sattupally vide order dated 19.06.2018, allowed I.A.No.203 of 2018

without deciding I.A.No.44 of 2018. Thus, the trial Court committed

procedural irregularity. However, there is no challenge to the order

dated 19.06.2018 and it attained finality. The Court below vide order

dated 27.12.2018 dismissed I.A.No.44 of 2018 filed by the petitioners

herein.

13. Challenging the said order, the petitioners herein have filed

CRP No.1507 of 2019 and this Court vide order dated 09.01.2020

disposed of the said CRP setting aside the order dated 27.12.2018 in

I.A.No.44 of 2018 in O.S.No.101 of 2017 passed by the Court below

and restored it to file for disposal afresh in accordance with law.

14. On remand, vide impugned order dated 23.06.2023, the

Court below dismissed I.A.No.44 of 2018 mainly on the ground that

the same was filed in I.A.No.365 of 2017 in O.S.No.101 of 2017 and

the said I.A.No.365 of 2017 was allowed on 30.09.2019 itself. There

were no interim orders passed in CRP No.1507 of 2019 and while

disposing the said CRP, the petitioners herein/defendants did not bring

the disposal of I.A.No.365 of 2017 to the notice of this Court.

15. Perusal of the record would reveal that the petitioners herein

have filed I.A.No.44 of 2018 in I.A.No.365 of 2017 in O.S.No.101 of

2017 on 31.01.2018 seeking to appoint an Advocate Commissioner to

record physical features of the petition schedule property to ascertain

survey number of the suit schedule property with the help of Mandal

Surveyor, Penuballi Mandal. It is the specific contention of the

petitioners herein that the property they are claiming is situated in

Sy.No.342 of Karaigudem revenue village under agreement of sale,

dated 03.05.1965 and 1st respondent/plaintiff with the help of

documents which are not relating to the suit schedule property, pressed

them into service. Therefore, appointment of an Advocate

Commissioner is necessary for adjudication of the lis involved in the

suit. It is also contended by the petitioners that to prove their contention

in the suit, an Advocate Commissioner may be appointed to note down

the physical features of the petition schedule property and to ascertain

survey number with the help of the Mandal Surveyor, for fair and just

disposal of the injunction petition and to arrive at just conclusion,

ascertaining survey number is more helpful. With the said contentions,

they sought to allow I.A.No.44 of 2018.

16. Thus the main grievance of the petitioners/defendants is that

the land which they are claiming is in Sy.No.342 of Karaigudem

revenue village whereas, the respondent/plaintiff is claiming the said

land basing on the false documents.

17. As discussed supra, the respondent/plaintiff himself filed

I.A.No.203 of 2018 seeking to amend survey number and I.A.No.44 of

2018 was filed by the petitioners herein seeking appointment of an

Advocate Commissioner. The said application vide I.A.No.203 of 2018

was allowed vide order dated 19.06.2018. The trial Court without

deciding I.A.No.44 of 2018, decided I.A.No.365 of 2017.

18. Perusal of the order dated 27.12.2018 in I.A.No.44 of 2018

would reveal that in the cause title of the said order itself, it is

mentioned as I.A.No.44 of 2018 in O.S.No.101 of 2017. Considering

the said aspects only, this Court, vide order dated 09.01.2020 in CRP

No.1507 of 2019 set aside the said order dated 27.12.2018 in I.A.No.44

of 2018 and remanded the matter for fresh disposal. This Court also

held that the submission made by the petitioners that the discussion and

conclusions in the order dated 27.12.2018 in I.A.No.44 of 2018 are in

favour of the petitioners herein, inadvertently, the said application was

dismissed. The said submissions of the petitioners herein are supported

by the findings and conclusions reached by the trial Court in the order

dated 27.12.2018. Thus, this Court directed the trial Court to decide

I.A.No.44 of 2018 afresh in accordance with law. The Trial Court

instead of deciding the said application in accordance with law,

dismissed the same vide impugned order dated 23.06.2023 on hyper-

technical aspects i.e. the said I.A.No.44 of 2018 was filed in

I.A.No.365 of 2017 and the said I.A.No.365 of 2017 was allowed,

therefore, I.A.No.44 of 2018 was dismissed. That is not the purport of

the order dated 09.01.2020 in CRP No.1507 of 2019. The Court below

on remand, instead of deciding the said I.A.No.44 of 2018, on merits,

dismissed the said application on hyper-technicalities.

19. As discussed supra, it is the specific contention of the

petitioners herein that the property is situated in Sy.No.342 and

respondent/ plaintiff is claiming the same basing on the false

documents. The trial Court failed to consider that the

respondent/plaintiff himself filed I.A.No.203 of 2018 seeking to amend

the survey number on 06.06.2018 i.e. after filing of I.A.No.44 of 2018

by the petitioners herein i.e. on 31.01.2018. The Court below lost sight

of the said fact.

20. As discussed supra, the petitioners herein in paragraph No.6

of the affidavit in I.A.No.44 of 2018, specifically contended that to

prove their contention in the suit, an Advocate Commissioner may be

appointed to note down the physical features of the petition schedule

property and to ascertain survey number with the help of the Mandal

Surveyor. The said aspects were not considered by the trial Court.

21. In the light of the aforesaid controversy, this court directed the

learned counsel for the petitioner to file a copy of the written statement,

affidavit, petition, counter and order in I.A.No.203 of 2018 and order dated

30.09.2018 in I.A.No.365 of 2017. He has filed the said documents along

with the memo vide USR No.95208 dated 25.09.2023 duly serving a copy of

the same on the learned counsel for the respondent/plaintiff. Perused the said

documents.

22. It is settled law that either party to the suit can ask for

appointment of Advocate Commissioner even before the trial in

situations where there is controversy as to identification, location or

measurement of the land, or premise or object, local investigation

should be done at the early stage so that the parties are aware of the

report of the Commissioner and go to trial prepared. The party against

whom report may have gone may chose to adduce evidence in rebuttal.

23. In Badana Muthyalu Vs. Palli Appalaraju 1 relying on

several other judgments including the judgment of the Division Bench

which was also followed in Savithramma Vs. B.Changa Reddy 2, this

Court considered the said aspect. In Savithramma (supra), it was held

as follows:-

(2013) 5 ALD 376

(1988) 1 ALT 353

"The question as to when a commissioner could be appointed should be within the wide discretion of the trial court but it cannot be said that no commissioner could be appointed before the issues are framed or the evidence is led............".

24. The Court below did not consider the said aspects, while

dismissing the I.A.No.44 of 2018.

25. As discussed supra, vide order dated 09.01.2020, in CRP

No.1507 of 2019, this Court having set aside the earlier order dated

27.12.2018 in I.A.No.44 of 2018, remanded the matter back to the trial

Court with a direction to decide the same afresh in accordance with

law. The court below instead of deciding the said application on merits

in accordance with law, dismissed the same on hyper-technicalities. In

fact, the Trial Court dismissed the said application under

misconception that it had been filed in I.A.No. 365 of 2017. In fact, the

said finding of the trial court is factually incorrect in view of the

specific contention of the petitioners in paragraph No.6 of affidavit

filed in I.A.No.44 of 2018.

26. In the light of the aforesaid discussion, this revision is

allowed. The impugned order dated 23.06.2023 in I.A.No.44 of 2018 in

I.A.No.365 of 2017 in O.S.No.101 of 2017 passed by the learned

Additional Junior Civil Judge, Sattupally is set aside. I.A.No.44 of

2018 is allowed. The Trial Court is directed to appoint an Advocate

Commissioner to record physical features of the petition schedule

property to ascertain survey number of the same with the help of the

Mandal Surveyor, Penuballi Mandal.

Since the suit is of the year 2017, the trial Court shall make an

endeavour to dispose of the very suit itself in accordance with law as

expeditiously as possible.

Consequently, miscellaneous petitions, if any, pending in this

revision shall stand closed.

________________________ JUSTICE K. LAKSHMAN

Date:13.10.2023.

Vvr