Mulukalla Malla Reddy vs Thota Rajaiah
2023 Latest Caselaw 2538 Tel

    THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

                    C.R.P.No. 1263 of 2023

ORDER:

This Civil Revision Petition has been filed by the

petitioner/defendant No.2 challenging the order of the

Additional Senior Civil Judge-cum-Assistant Sessions Judge,

Mancherial, dated 15.03.2023 in I.A.No.1 of 2023 in O.S.No.54

of 2012, rejecting the petition filed by the petitioner for

appointment of Advocate Commissioner.

2. Brief facts leading to the filing of the present Civil

Revision Petition are that the revision petitioner is the defendant

No.2 in the Suit and the respondent No.1 is the plaintiff. The

suit in O.S.No.54 of 2012 was filed for partition of the Suit

Schedule Property i.e., land admeasuring 270 Sq.Yards, in

Survey No.41, situated at Garmilla Sivar R/M Mancherial,

within the Mancherial municipal limits into two equal shares

and for allotting half share and for possession of the half share

to the plaintiff and for mandatory injunction for dismantling the

illegal structures made by the defendant No.2 in the suit

schedule land and also for permanent injunction restraining the

defendant No.2 from making any further illegal construction in

PMD,J CRP.No. 1263 of 2023

the suit land. The petitioner has filed the I.A.No.1 of 2023

seeking appointment of an Advocate Commissioner for

measuring the land in Survey No.41 to an extent of 846

sq.yards along with Mandal Surveyor/Town and Country Plan

Officer and to record its physical features with aid and

assistance of the Mandal Surveyor and to report the same

before the Court. The said application was contested by the

plaintiff and vide orders dated 15.03.2023 the said petition was

dismissed by observing that the suit is filed for partition and

separate possession for allotment of half share over the suit

land and further that the application for appointment of

Advocate Commissioner is to measure land to an extent of 846

sq.yards, which is beyond the scope of suit land to an extent of

270 sq.yards. Challenging the same, the present Civil Revision

Petition is filed.

3. Learned counsel for the petitioner submitted that

the Court below failed to see that there is no bar for

appointment of Advocate Commissioner in the suit for partition

when there is a dispute of localization or demarcation of the

property. It is further submitted that the partition suit is also

declaratory in nature wherein the rights of the parties to the

PMD,J CRP.No. 1263 of 2023

Suit Schedule Property are determined and therefore, there is

nothing wrong in appointing an Advocate Commissioner for

proper elucidation of facts to the dispute. He therefore, sought a

order setting aside the order dated 15.03.2023 in I.A.No.1 of

2023 in O.S.No.54 of 2012 and to direct the Lower Court to

allow the said I.A., and to pass such other order or orders.

4. Learned counsel for the respondents opposed the

said contention and submitted that I.A.No.1 of 2023 is filed to

gather evidence, which is not permissible. He further submitted

that the said application is beyond the scope of suit, as

observed by the Court. He drew the attention of this Court that

the Schedule of Suit Property which is 270 sq.yards, whereas in

I.A.No.1 of 2023, the petitioner was seeking to measure land to

an extent of 846 sq.yards.

5. Learned counsel for the petitioner however,

submitted that the entire property is of 846 sq.yards, which is

to be partitioned equally amongst both the parties i.e., 423

sq.yards each and out of 423 sq.yards, the defendant No.2 has

purchased 50% and therefore, the petitioner has sought the

measurement of the entire property.

PMD,J CRP.No. 1263 of 2023

6. Having regard to the rival contentions and the

material on record, this Court finds that the suit is for partition

and separate possession of the partitioned property. Therefore,

the existence and the characteristics of the property and also

the boundaries of the property are not in dispute. Further, as

rightly held by the Lower Court, the Suit Schedule Property is

only to an extent of 270 sq.yards, whereas the petitioner is

seeking measurement of 846 sq.yards, which is beyond the

scope of the suit. Learned counsel for the petitioner placed

reliance upon the judgment of Hon'ble Supreme Court in the

case of Haryana Waqf Board Vs. Shanti Sarup and Others 1

and also the judgment of this Court in the case of Jajula

Koteshwar Rao Vs. Ravulapalli Masthan Rao 2. However, this

Court finds that these two decisions are distinguishable on facts

and are not applicable to the facts of the case before this Court.

7. In view of the same, this Court does not find any

merit in the Civil Revision Petition and it is accordingly

dismissed.

1 (2008) 8 SCC 671 2 2016(1) ALT 134 (S.B.)

PMD,J CRP.No. 1263 of 2023

8. Accordingly, this Civil Revision Petition is

dismissed. There shall be no order as to costs.

9. Miscellaneous petitions, if any, pending in this CRP,

shall stand closed.

____________________________ JUSTICE P.MADHAVI DEVI

Date: 20.09.2023 bak

PMD,J CRP.No. 1263 of 2023

THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

C.R.P.No. 1263 of 2023

Dated: 20.09.2023

bak