Telangana High Court
Penugonda Upendar vs Podila Sreenu Srinivas Rao on 20 January, 2025
Author: P. Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No. 2419 of 2024
ORDER:
This Civil Revision Petition is filed aggrieved by the order,
dated 01.07.2024, passed in I.A.No.6 of 2024 in I.A.No.2 of
2023 in O.S.No.58 of 2023 by the learned Special Judge for
Trial of Cases under SCs/STs-cum-III Additional District and
Sessions Judge at Khammam.
2. O.S.No.58 of 2023 is filed by respondent/plaintiff against
petitioner/defendant for declaration. During the pendency of
the suit, I.A.No.2 of 2023 was filed by respondent/plaintiff
herein to grant ad-interim exp-parte injunction order in favour
of respondent/plaintiff restraining the petitioner/defendant
herein from interfering with the peaceful possession of the
respondent/plaintiff over the petition schedule property.
I.A.No.6 of 2024 was filed by respondent/plaintiff to appoint an
Advocate Commissioner to verify the boundaries by fixing them
as the differences in boundaries from the petition schedule
property and property of defendant. The trial Court allowed the
application on 01.07.2024. Aggrieved by the order of the trial
Court, the petitioner/defendant herein filed the present Civil
Revision Petition.
3. Heard both sides. Perused the record.
4. Learned counsel for petitioner contended that the trial
Court did not consider the crucial aspects that the respondent
filed I.A.No.6 of 2024 to collect the evidence as he had no case
in I.A.No.2 of 2023 and the schedule shown in I.A.No.2 of 2023
and I.A.No.6 of 2024 are different and respondent suffered a
decree in O.S.No.95 of 2011 and it was confirmed in A.S.No.116
of 2013. Law does not permit to collect evidence by seeking
appointment of Advocate Commissioner to localize and to do
survey at the time of seeking injunction as the injunction
petition is to be considered only basing on the material
available on record. There is no document filed by the plaintiff
for the plaint schedule and to the relief sought in the suit and
there will be no record or any basis for the Advocate
Commissioner or the Mandal Surveyor to verify the boundaries
or fixing the boundaries as sought in I.A.No.6 of 2024.
Therefore, requested the Court to set aside the order of the trial
Court.
5. O.S.No.58 of 2023 is filed to declare the
respondent/plaintiff as absolute owner and possessor of the
suit schedule property and for injunction. During the pendency
of the suit, I.A.No.2 of 2023 was filed by respondent/plaintiff to
grant ad-interim exp-parte injunction order in favour of
respondent/plaintiff restraining the petitioner/defendant herein
from interfering with the peaceful possession of the
respondent/plaintiff over the petition schedule property, in fact
the application is filed along with the suit. The contention of the
petitioner is that the suit for injunction cannot be accepted and
also contended that as it is at the initial stage, the said
application is to be dismissed.
6. In the written statement filed by defendant, he stated that
he constructed the compound wall initially and two A.C. Sheet
Roof Rooms and the two roomed house was allotted with
H.No.4-1-641 (new) corresponding to its old H.No.4-1-175/10
(old) and the same was also assessed to Property Tax in his
name by Khanapuram Haveli Grampanchayat. When plaintiff
and his wife tried to interfere with the peaceful possession and
enjoyment of the defendant's house and site, he filed O.S.No.95
of 2011 for perpetual injunction. The trial Court after
considering the arguments decreed the suit on 22.11.2013.
Against the said judgment, plaintiff and his wife filed
A.S.No.116 of 2013 and the same was dismissed on 31.12.2019
confirming the judgment of the trial Court.
7. I.A.No.6 of 2024 was filed by respondent/plaintiff to
appoint an Advocate Commissioner. He stated that defendant
is making hectic efforts to interfere with his peaceful possession
and enjoyment and as there was differences in boundaries of
the suit schedule property and the property of the defendant
which mentioned in Doc.No.4113 of 2006 dated 23.05.2006
and the boundaries of suit schedule property in O.S.No.95 of
2011, it is just and necessary to appoint an Advocate
Commissioner to verify the boundaries and to fix the differences
in boundaries with the help of Mandal Surveyor.
8. Petitioner/defendant filed a counter in I.A.No.6 of 2024,
and he stated that the boundaries shown in petition schedule
property are self serving and there is no document wherefrom
the same can be ascertained, whereas, the site of respondent
can very well be identified by the boundaries shown in the
registered sale deed. The decree was passed in O.S.No.95 of
2011 and the same was confirmed in A.S.No.116 of 2013 and
the said findings are a futile exercise and contrary to law. As
the respondent filed the suit for declaration, it is for him to be
sure about its localization and it cannot be done through
Advocate Commissioner as it amounts to collection of evidence.
Moreover, the suit is in the initial stage, therefore, requested
the Court to dismiss the petition.
9. Admittedly, the suit is in the initial stage and for granting
of ad-interim injunction, an application is filed along with the
plaint. When plaintiff approached the Court for declaration of
the suit, it is for him to prove his case by duly submitting the
oral and documentary evidence instead of coming up with an
application for appointment of advocate Commissioner to fix
up the boundaries with the help of Mandal Surveyor and it
clearly amounts to collection of evidence. Therefore, this Court
finds that the trial Court though extracted several citations,
failed to appreciate the facts properly allowed the application
and it is liable to be set aside.
10. In the result, this Civil Revision Petition is allowed by
setting aside the order of the trial Court dated 01.07.2024,
passed in I.A.No.6 of 2024 in I.A.No.2 of 2023 in O.S.No.58 of
2023. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand
closed.
_____________________
P. SREE SUDHA, J
Date: 20.01.2025
CHS
