Telangana High Court
Smt.Mogili Laxmidevi vs Erladinne Ranga Reddy on 11 June, 2025
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITON No.990 of 2024
ORDER:
This Civil Revision Petition is directed against the order,
11.03.2024, passed by the Additional Senior Civil Judge, Gadwal
in I.A.No.401 of 2023 in O.S.No.12 of 2021, whereunder and
whereby the application filed under Order XXI Rule 9 CPC
praying the Court to an appoint Advocate-Commissioner to visit
the suit schedule property and to report about the physical features
of Sy.No.431/Paiki situated in the limits of Yerravally X Road,
Itikyala Mandal, was allowed.
2. Heard Sri C.H.Jayakrishna, learned counsel for the revision
petitioners and Sri Ch.Ravinder, learned counsel for respondents.
3. The revision petitioners are plaintiffs and respondents are
defendants in the suit.
4. The brief factual matrix of the case is that the plaintiffs filed
the aforesaid suit for declaration of title and also for perpetual
injunction in respect of the suit schedule property against the
defendants. The defendants entered appearance and filed written
statement and Counter Claim and the defendants also filed an
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application under Order XXI Rule 9 CPC to appoint Advocate-
Commissioner to visit the suit schedule property and to report
whether the suit schedule property exists in Sy.No.431/Paiki.
5. In the affidavit filed in support of the application, the
defendants contended that the plaintiffs are not owners of the suit
schedule property forming part of Sy.No.431/Paiki of Yerravally
Cross Road, Itikyala Mandal, Jogulamba-Gadwal District; that the
suit plots are in fact covered in Sy.No.496/E and the plaintiffs are
wrongly showing the survey number as 'Sy.No.431/Paiki' and
since there is a serious dispute with regard to existence of the said
plots in Sy.No.431/Paiki, it is appropriate to appoint an Advocate-
Commissioner to visit the suit schedule property and to report
actual location of the said plots in Sy.No.431/Paiki.
6. The plaintiffs filed a counter resisting the said application
and contended that the said application is filed on false and
frivolous grounds. They denied that defendants are in physical
possession of Sy.No.496/E and contended that the lands in
Sy.No.496/E is no way concerned with the suit schedule property;
that the land in Sy.No.496 is affected in road widening undertaken
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by the National Highway Authority and no land is available in
Sy.No.496 after sales and acquisition by the National Highway
Authority. It was further averred that there is no need for
appointment of Advocate-Commissioner and in fact, appointment
of Advocate-Commissioner amounts to collection of evidence and
thus, prayed to dismiss the application.
7. The trial Court vide impugned order dated 11.03.2024
allowed the said application and appointed an Advocate-
Commissioner for local inspection and to ascertain by survey of
lands in Sy.No.431/Paiki and Sy.No.496/E with the help of Mandal
Surveyor or any authority from the Department of Survey and
Land Records not below the rank of Deputy Director/Additional
Director and file his report. While allowing the said application,
the trial Court specifically observed that the plaintiffs are claiming
that the suit schedule property is situated in Sy.No.431/Paiki,
whereas the defendants are claiming that suit schedule property is
situated in Sy.No.496/E; and that, in a suit for declaration of title,
the burden is always on the plaintiff to succeed on his own case.
However, in the present case, the defendants have filed Counter
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claim, therefore, the burden is equally on both the parties to
establish their respective contentions/title and if Advocate-
Commissioner is appointed and the disputed land is measured, the
things would be clear for better appreciation of the pleadings and
the facts asserted by both the parties. Aggrieved by the said order,
the present Revision Petition is filed.
8. Learned counsel for the revision petitioners contended that
the trial Court erred in allowing the application without considering
the issue in proper perspective; that the trial Court failed to observe
that the Advocate-Commissioner cannot be appointed to gather
evidence and for identification of property; and that even before
commencement of trial, an application was filed and the same was
erroneously allowed by the trial Court which requires interference
by this Court. He further contended that it is not the case of the
defendants that lands in Sy.No.431/Paiki and Sy.No.496/E are
overlapping and located side by side and in the absence of such
pleading with regard to identity of the property, Advocate-
Commissioner ought not to have been appointed. In support of his
contentions, he relied upon the following judgments of the
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erstwhile High Court of Andhra Pradesh in Dammalapari
Satyanarayana and others Vs. Datla Venkata Ramabhadra Raju
@ D.V.R.Raju and another1 and Arvind Kumar Agarwal Vs. M/s
Legend Estates (P) Ltd reptd by its Managing Partner 2.
9. Per contra, learned counsel for the respondents/defendants
contended that the trial Court, on due consideration of the reasons
set out in the application as well as the submissions put forth by
both the learned counsel, has rightly allowed the application and no
grounds are made out to interfere with the impugned order. He
further contended that when there is a dispute as to whether the suit
schedule property is sitauted in Sy.No.431/Paiki or Sy.No.496/E, it
is always desirable to appoint an Advocate-Commissioner to
survey and identify the location of the suit schedule property. He
further contended that Advocate-Commissioner was appointed
only to identify the suit schedule property and it does not amount
to collection of evidence and in fact, the report of the Advocate-
Commissioner would help the Court in proper adjudication of the
dispute between the parties.
(2006) 4 ALD 675
(2015) 2 ALT 484
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10. In support of his contentions, learned counsel for the
respondents/defendants relied upon the judgment rendered by a
learned single Judge of the erstwhile High Court of Andhra
Pradesh in Bandaru Mutyalu and another Vs. Palli Appalaraju 3
11. As regards the judgment cited by learned counsel for the
revision petitioners in Dammalapari Satyanarayana's case (cited
supra), it is held that appointment of Advocate-Commissioner to
undertake localization of the suit schedule property with the help of
competent surveyor basing on the title deeds of both the parties is
incorrect since the so-called title deeds must be accepted by the
Court in evidence before they constitute the basis for identification
of the property. The facts and circumstance of the above case and
the present case are entirely different and hence, the said judgment
has no application to the present case.
12. In Arvind Kumar Agarwal's case (cited supra), it is held
that an Advocate-Commissioner cannot be appointed to gather
evidence and appointment of Advocate-Commissioner at threshold
itself cannot be entertained and the same will amount to gathering
AIR Online 2013 AP 120
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evidence. However, in the said judgment, it is also held that
ordinarily, in a suit for injunction, Advocate-Commissioner is not
appointed to gather evidence only in cases where there is serious
dispute with regard to identity of the property and boundaries
thereof, the Advocate-Commissioner can be appointed even in suits
filed for injunction. In fact, the said judgment is in favour of the
revision petitioners/plaintiffs.
13. Insofar as the order passed in Bandaru Mutyalu's case
(cited supra) is concerned, the learned single Judge has held that in
situations where there is controversy as to identity, location or
measurement of land, local investigation should be done at an early
stage so that the parties are aware of the report of the
Commissioner and go to trial prepared. The ratio laid down in the
said judgment is squarely applicable to the facts of the present
case.
14. It is also appropriate to refer to judgment of Division Bench
of this Court in P.Sreedevi Vs. I.V.L.N.Venkata Lakshmi
Narasimha Prasad 4, wherein it is held that when there is dispute as
2020(6) ALD 99
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regards localization or demarcation of property, the best course is
to appoint an Advocate-Commissioner/Surveyor for localization.
15. A perusal of the record would disclose that the plaintiffs are
claiming that the suit schedule property is situated in
Sy.No.431/Paiki, whereas the defendants are claiming that the suit
schedule property is situated in Sy.No.496/E and in fact, they have
also filed Counter Claim along with the written statement.
16. It is settled principle of law that in case of dispute with
regard to location of land in a particular survey number or its
identity, it is always appropriate and desirable that an Advocate-
Commissioner or Surveyor be appointed to survey the land and
identify as to existence of the land in a particular survey number,
which will aid the Court in better adjudication of the lis between
the parties and to come to proper conclusions.
17. In the present case, as stated hereinabove, there is a serious
dispute as to whether the suit schedule property is situated in
Sy.No.431/Paiki or Sy.No.496/E, therefore, the trial Court has
rightly appointed Advocate-Commissioner to survey the land with
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the help of Surveyor and submit his report as to the survey number
in which the suit schedule property is situated.
18. Having regard to the aforesaid facts and circumstances of
the case and in view of the foregoing reasons and also in the light
of the law laid down in Arvind Kumar Agarwal's case (cited
supra) and Bandaru Mutyalu's case (cited supra), this Court is of
the considered opinion that the trial Court has rightly appreciated
the case and allowed the application by the impugned order, which
warrants no interference by this Court.
19. In the result, this Civil Revision Petition fails and is
accordingly dismissed.
20. Pending miscellaneous applications, if any, shall stand
closed. Interim order, dated 22.03.2024, passed by this Court
granting stay, which was extended from time to time, shall stand
vacated. No costs.
_____________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date:11.06.2025
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