Telangana High Court

Md. Sardar vs Vallepu Narsing Rao on 21 August, 2024

  THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI

                  C.R.P.NO. 1539 of 2024

ORDER:

This Civil Revision Petition has been filed against the

orders dated 19.02.2024 in I.A.No.826 of 2023 in

O.S.No.567 of 2019 on the file of the Principal Junior Civil

Judge-cum-Judicial Magistrate of First Class, Sangareddy.

2. Brief facts leading to the filing of the present

Civil Revision Petition is that the petitioners are defendants

in the Suit. The suit was filed by the plaintiffs for perpetual

injunction against the petitioners herein claiming

possession over the plots in Survey No.103/D, situated at

Kashipur Village, Kandi Mandal, Sanga Reddy District, in

respect of the Plot Nos.3, 5, 6, 10, 9, 11, 2. The ad-interim

injunction was granted by the trial Court in I.A.No.1865 of

2019 in O.S.No.567 of 2019 under Section 26 Order 7 Rule

1 & 2 of Civil Procedure Code and after receipt of the notice

and summons, the petitioners/defendants have filed a

detailed counter affidavit and written statement denying

the possession of the respondents/plaintiffs over the

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petition scheduled property and on their behalf filed

certain documents i.e., Certified copy of Urdu sale deed

along with translation, electricity bills along with

photographs to the said suit scheduled property. According

to the petitioners, they have purchased the petition

scheduled property admeasuring an extent of Ac.0-19

guntas in Survey No.103, situated at Kashipur Village,

Kandi Mandal, Sanga Reddy District and that they have

constructed mulgies over the suit schedule property and

that there is also a mosque in the suit schedule property

since more than thirty years.

3. The interim injunction petition came up for

arguments on 06.06.2023 and the petitioners prayed the

trial Court to appoint an Advocate Commissioner to verify

the physical features of the petition schedule property so

as to come to correct conclusion and to resolve the dispute.

The trial Court, however, dismissed the same by observing

that the petitioners are trying to ascertain with regard to

who is in the possession of the property and that it cannot

be done by appointing an Advocate Commissioner.

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Challenging the same, the present Civil Revision Petition

has been filed.

4. Learned counsel for the petitioners relied upon

the grounds raised in the Civil Revision Petition. He further

placed reliance upon the following judgments in support of

his contentions:

1. Shameem Begum Vs. Vennapusa Chenna Reddy and Another 1;

2. Mundladinne Gopal Reddy Vs. P.Ramachandra Reddy 2;

3. G.Surender Reddy Vs. Smt.M.Lakshmi and Two Others 3.

5. Learned counsel for the respondents, on the

other hand, relied upon the impugned order. He further

placed reliance upon the following judgment in support of

his contentions:

1. G.Ramanaiah Vs. K.Krishnaiah 4,

1 AIR 2018 Hyderabad 17.

2 2016 (6) ALD 124.

3 CRP Nos.1111 & 1112 of 2020, dated 22.01.2024. 4 2019 (4) ALD 146.

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6. Having regard to the rival contentions and the

material on record, this Court finds that in the suit, the

petitioners have claimed the suit schedule property to be

open plots i.e., Plots No.2, 3, 5, 6, 9, 10 and 11 of Kashipur

Village, Kandi Mandal, Sanga Reddy District, but the

survey numbers are not mentioned in the suit schedule

property. However, in Para-1 of the plaint, the survey

number is mentioned as 103/D.

7. In written statement filed by the defendants,

they claimed to have purchased 19 guntas of land in

Survey No.103 and that since the date of purchase of

property in the year 1970, they are enjoying the same and

they are in peaceful possession without any third party

interference. It is also stated that the defendants have

constructed a mosque and the said mosque is in existence

since more than thirty years and a house has also been

constructed thereon and was allotted a house bearing

No.3-47/1.

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8. The I.A.No.826 of 2023 was filed by the

defendants in the suit to appoint an Advocate

Commissioner, to verify the physical features of the petition

schedule property with the assistance of revenue

authorities/Mandal surveyor of Kandhi Mandal, Sanga

Reddy District and also to verify whether there are mulgies

and mosque situated in Survey No.103 of Kashipur Village

or plots are there as contended by the

respondents/plaintiffs in the suit.

9. A counter affidavit has been filed by the

respondents stating that the mosque and mulgies are not

mentioned in the written statement filed by the

respondents/plaintiffs and that they are at a distance from

the suit schedule open plots of east side and that the

mosque and mulgies are in no way concerned with the

plaintiffs and that there is no need to verify the physical

features of the suit schedule properties, more particularly,

the suit schedule open plots.

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10. The trial Court has observed that the plaint is

filed for prohibitory perpetual injunction and therefore, the

burden lies on the plaintiffs to prove their lawful

possession over the petition schedule property as on the

date of filing of the suit and the object of the Order 26 Rule

9 of Code of Civil Procedure is not to assist a party to

collect evidence where the party can procure the same and

that an Advocate Commissioner cannot be appointed for

making an enquiry about the fact of possession of the

property in dispute and that it is nothing but fishing of

information and not elucidating any matter in dispute.

Thus opining, the trial Court has dismissed the application

for appointment of an Advocate Commissioner.

11. This Court finds that the trial Court has not

appreciated the contentions of the petition properly. The

contention of the petitioners was that the suit schedule

property is not an open land, but consists of mulgies and

mosque, whereas the contentions of the respondents/

plaintiffs is that the suit schedule land are open plots and

are on the eastern side of mulgies and mosque. Therefore,

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the location of suit schedule property is in question and

the Advocate Commissioner has not been sought to be

appointed for verifying as to who is in possession of the

suit schedule property.

12. The learned counsel for the petitioner has relied

on the following decision in support of the contentions of

the petitioners. In the case Mundladinne Gopal Reddy Vs.

P.Ramachandra Reddy (cited supra), Co-ordinate bench of

this Court has culled out the principles to be followed for

appointment of an Advocate Commissioner and it was held

as under:

10. Be it noted that the three suits are respectively filed for specific performance of respective agreements of sale in respect of the respective suit schedule properties. According to the plaint averments, the suit schedule properties in the respective suits are hayrick yards. According to the defence, they are agricultural lands being parts and parcels of a huge extent of agricultural land in different survey numbers. Since the defendant disputed the nature of the suit schedule land in each of the suits, the appointment of an Advocate-

Commissioner was sought by the plaintiffs to ascertain whether the suit schedule land in each suit is a hayrick yard or an agricultural land. The trial Court appointed the Advocate-Commissioner for the said purpose. The law is lucid that in any suit in which the Court deems that local investigation to be

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requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a Commission to any person as it thinks fit directing him to make an investigation and report to the Court. When there is a dispute about the nature of the land in each of the three suits and also about the use to which the respective lands in the three suits are being put to, the appointment of an Advocate-Commissioner to inspect the schedule lands in the suits and note down the nature of the said lands and the uses to which the lands are being put to, cannot be faulted and the appointment of Commissioner for the said purpose by no stretch of imagination can be called as an attempt to gather evidence. Viewed thus, this Court finds that there is no merit in the contentions of the revision petitioner/defendant.

11. Having regard to the aforesaid reasons, this Court holds that the order of the Court below is just and proper, in the facts and circumstances of the case and that the said order does not brook interference.

13. In the case of G.Surender Reddy Vs.

M.Lakshmi and Two Others (cited supra), Co-ordinate

bench has held as under:

9. It is pertinent to note that the learned II Additional District and Sessions Judge, Ranga Reddy District at L.B.Nagar has passed the impugned order in favour of either of the parties and in order to arrive at a correct decision, an Advocate Commissioner was appointed by directing both the parties to maintain status-quo until the return of warrant. Whenever there is a dispute regarding boundaries or physical features of the property or any allegation of encroachment as narrated by one party and disputed by the other, the facts have to be physically verified,

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because, the recitals of the documents may not reveal the true facts and in such cases, measuring the land on the spot by a Surveyor may become necessary. In K.Dayanand and another v. P.Sampath Kumar 5, the High Court for the Composite State of Andhra Pradesh observed that for the related purpose of clarifying the physical features of the suit schedule property, there can be appointment of Commissioner even in a suit for perpetual injunction. In P.Sreedevi v. IVLN Venkata Lakshmi Narsimha Prasad 6, this Court observed that the Commissioner in effect is a projection of the Court appointed for a particular purpose; and where there is an allegation of encroachment by one party which is denied by the other, oral evidence cannot come to an aid of a party and an Advocate Commissioner may be appointed to ascertain this fact. In M.Yadaiah and another v.

M.Chilakamma and others 7, this Court observed that appointment of Advocate Commissioner to note down the physical features does not amount to facilitating the party to collect evidence. In Haryana Waqf Board v. Shanti Sarup and others 8 the Apex Court observed that the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial Court was wrongly rejected. In view of the principle laid down in the above said decisions, this Court is of the considered view that the first appellate Court was right in appointing Advocate Commissioner to identify the property in both the suits to arrive at a proper conclusion before granting or not granting injunction in respect of the disputed properties.

5 2015 (2) ALD 319 6 2020 (6) ALD 99(TS)(DB)

8 (2008) 8 SCC 671

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14. Learned counsel for the respondents, on the

other hand, has relied upon the judgment in the case of

G.Ramanaiah Vs. K.Krishnaiah (cited supra), wherein it

was held as under:

7. Even otherwise, the relief claimed in I.A.No.140 of 2018 is to appoint an Advocate Commissioner to note down the existing physical features of suit schedule property and the construction of bathrooms lavatory and trees existing thereon, as the respondent/plaintiff is contemplating the demolish the bathrooms lavatory and falling trees in the suit schedule property. Whether those bathrooms lavatory and trees existing thereon belong to the petitioner/defendant is a question to be decided while determining the possession of property.

If, really, the respondent is trying to demolish the bathrooms lavatory and trees existing thereon of this petitioner/defendant, allegedly in the suit schedule property, the remedy available to this petitioner is elsewhere, but not in the present suit. Therefore, appointment of Advocate Commissioner to note down the existing physical features of suit schedule property and the construction of bathrooms lavatory and trees existing in the suit schedule property would amount to collection of evidence, which is impermissible in the suit filed for injunction simplicitor. In such circumstances, there is no need for appointment of Advocate Commissioner for collection of such evidence to find out the exact area of property in possession of the respondents in view of decisions reported in (i) Sagi Vijaya Ramachandra Raju and others v. Koppisetti Satyanarayana and others, 2009 (5) ALD 459 = 2009 (6) ALT 353; (ii) Batchu Narayana Rao v. Batchu Venkata Narasimha Rao, 2010 (5) ALD 83; (iii) Koduru Sesha Reddy v.

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Gottigundala Venkata Rami Reddy and others, 2006 (1) ALD 372 and (v) Yenugonda Bal Reddy v. Manemma and others, 2011 (2) ALD 472 = 2011 (3) ALT 232. In all the above four judgments, this Court consistently held that appointment of Advocate Commissioner, in a suit for declaration of title and permanent injunction or in a suit for injunction simplicitor, to note down physical features amounts to collection of evidence.

15. From these judgments of the Co-ordinate

benches, the principle that is culled out is that for

determining the physical features of the property, an

Advocate Commissioner can be appointed but not for

verifying and gathering evidence as to who is in possession

of the property. Therefore, the contentions of the

petitioners are supported by the judgments cited by the

learned counsel for the petitioner and the trial Court ought

to have considered that the prayer of the petitioners was

only to verify the physical features of the suit schedule

property and not to verify as to who is in possession of the

property. Therefore, the findings of the trial Court are