Telangana High Court
Gandla Anjan Babu vs Narahari Roja Balu on 27 June, 2025
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CIVIL REVISION PETITION No.1590 OF 2025
ORAL ORDER:
Heard Mr. Neeli Rishi Kumar, learned counsel for the petitioner
- plaintiff and Mr. K. Rajashekar, learned counsel representing Ms.
Swathi Menon P., learned counsel for the respondent - defendant.
2. This revision is filed under Section - 227 of the Constitution
of India challenging the order dated 18.03.2025 passed by learned II
Additional Junior Civil Judge, Karimnagar in I.A. No.514 of 2023 in
O.S. No.1247 of 2022.
3. The petitioner herein is plaintiff. He filed the aforesaid suit,
O.S. No.1247 of 2022, for declaration, recovery of possession and for
perpetual injunction against the respondent - defendant. The
petitioner herein has also filed an Interlocutory Application seeking
temporary injunction and the same is pending. There is no interim
injunction as of now.
4. According to both learned counsel for the petitioner and
respondent, the suit is at the stage of Section - 89 of C.P.C. At that
stage, the petitioner herein had filed I.A. No.514 of 2023 in
O.S.No.1247 of 2022 under Order - XXVI, Rule - 9 of CPC to appoint
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an Advocate-Commissioner to measure the area of the petitioner -
plaintiff and the respondent - defendant as per sale deed bearing
document No.1664 of 1999, dated 19.04.1999 on the following
grounds:
(i) The respondent illegally occupied the suit schedule area on
which the petitioner has easementary rights.
(ii) In the written statement, the respondent stated that she did not
occupy the suit land and that the said area belongs to her.
5. The respondent - defendant opposed the said application by
filing counter contending as follows:
(i) The petitioner has to establish his suit claim independently by
adducing evidence.
(ii) If Advocate-Commissioner is appointed at this stage, it
amounts to collection of evidence.
6. Vide impugned order dated 18.03.2025, the trial Court
dismissed the said application holding that the plaintiff has to prove
his case by adducing evidence, both oral and documentary and at this
stage if the request made by the petitioner to appoint an advocate
commissioner is accepted, it amounts to collection of evidence.
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7. Challenging the same, the petitioner filed the present
revision. Learned counsel for the petitioner would contend that at any
stage the plaintiff can file an application under Order - XXVI, Rule - 9
of CPC to appoint an advocate commissioner. The plaintiff is only
seeking to note down the physical features and to measure the area of
plaintiff and the defendant as per the documents through Mandal
Surveyor and also descriptive particulars of the suit area by
identifying the same for immense help in better adjudication. Without
considering the said aspects, vide impugned order, the trial Court
dismissed the said application erroneously. He has placed reliance on
the judgments rendered by this Court in Jajula Koteshwar Rao v.
Ravulapalli Masthan Rao1 and Donadulu Uma Devi v. Girika
Katamaiah @ Basaiah2.
8. Whereas, Mr. K. Rajasekhar, learned counsel appearing for
the respondent, would contend that the aforesaid application filed by
the petitioner is premature, and in the written statement, the
respondent has specifically mentioned that the petitioner has sold the
suit schedule property to the respondent under an unregistered
agreement of sale, dated 01.12.2000 and he has also delivered
. 2015 (6) ALD 483
. 2013 (2) ALD 86
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possession of the same to the respondent. She is in possession of the
suit schedule property. The plaintiff has to prove his case by adducing
evidence, both oral and documentary. He cannot seek appointment of
advocate commissioner at this stage. On consideration of the said
aspects only, the trial Court dismissed the said application filed by the
petitioner vide impugned order. There is no error in it. He placed
reliance on the judgments in Chandrasekaran v. V. Doss Naidu3,
Yenugonda Bal Reddy v. Manemma 4, Thalla Sulochana v. Thalla
Issac 5 and Muttadi Savitri v. Bhimanapati Venkata Ramana
Reddy 6.
9. As discussed above, the petitioner herein has filed the
aforesaid suit for declaration of title, recovery of possession and for
perpetual injunction. The suit schedule property is open area
admeasuring 14 square yards (3 feet x 42 feet), door bearing No.5-6-
114/2, situated at Kapuwada Locality, Karimnagar Town. It is the
specific case of the petitioner that taking advantage of his absence
from Karimnagar Town, the respondent illegally occupied the suit
schedule land which affects his easementary rights.
. 2005 LawSuit (Mad) 756
. (2011) 3 ALT 232
. (2012) 3 ALT 260
. CRP No.1258 of 2022, decided on 10.06.2025
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10. In the written statement, the respondent specifically
contended that she has purchased an extent of 225.55 square yards in
Survey No.240, Kapuwada Street, Karimnagar which is situated
towards north side of the plaintiff's house under registered sale deed
bearing document No.1664 of 1999, dated 19.04.1999. The plaintiff
purchased the land admeasuring 186 square yards under registered
sale deed bearing document No.5153 of 2000, dated 30.09.2000.
When the defendant started to construct her house, the plaintiff has
approached and offered to sell his land of 14 square yards i.e., suit
schedule property as the said piece of property is located on southern
Side of house which is not good as per his 'Vaastu' belief and he has
to give up the said piece of land and instead requested the defendant to
purchase it. After due consideration, the defendant agreed to purchase
the same and consequently an unregistered agreement of sale was
executed by the plaintiff in her favour on 01.12.2000 under which
title, interest and ownership of the plaintiff over the suit schedule
property was transferred in favour of the defendant for valuable
consideration of Rs.25,000/- in the presence of elders, namely Mr. N.
Venkataiah and Mr. N. Ravi Prasad and the plaintiff delivered the
possession of suit schedule property immediately. Thus, since
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01.12.2000 the defendant has been in an uninterrupted, continuous and
open possession of the suit schedule property to the knowledge of the
plaintiff as its owner and the defendant has perfected her title over the
suit schedule property. The plaintiff has acquiesced and given up all
his rights, over the suit schedule property and thereby the defendant
has become the absolute owner and possessor of the suit schedule
land. Later, the defendant constructed her house in the year 2001 by
obtaining municipal permission vide proceedings dated 25.05.2000
and constructed her house which was allotted House No.5-6-114 and
she also raised compound wall immediately including the suit
schedule land in the year 2001 itself. In the year 2001 itself, the
defendant dug trenches on the suit schedule land and laid her drain
pipes from her house connecting to main drain on 60 feet road towards
eastern side and constructed her water sump fitted with electric motor
on the suit schedule land. The plaintiff suppressed all the said
material facts relating to the suit schedule property and filed the
aforesaid suit only to cause harassment and to extract money from the
defendant. The plaintiff has no right of any nature over the suit
schedule property. Thus, there is dispute and it was measured by the
Surveyor several times basing on the documents. Therefore, the
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petitioner is seeking to appoint an advocate commissioner to measure
the area of the plaintiff and the defendant as per the registered sale
deeds bearing document No.5153 of 2000, dated 30.09.2000 and 1664
of 1999, dated 19.04.1999 through Mandal Surveyor, also to note
down the physical features and description particulars of the suit area
by identifying the same only to collect evidence.
11. The suit is coming for settlement in terms of Section - 89 of
C.P.C. As discussed above, in the written statement filed by the
respondent, she has specifically contended that the plaintiff has sold
the suit schedule property to her under an unregistered agreement of
sale dated 01.12.2000. By virtue of the same, she is in possession of
the suit schedule property. She has constructed the house. Therefore,
the petitioner cannot file the aforesaid application under Order -
XXVI, Rule - 9 of CPC contending that the respondent is in illegal
occupation of the suit schedule property, which affects his easement
rights. The said contentions of the petitioner are triable issues. The
petitioner will be given an opportunity of cross-examination of
defendant's witnesses and he elicits the said fact. The defendant will
be given an opportunity of eliciting certain facts from the plaintiff
witnesses. The said facts are triable issues. The petitioner has to face
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trial and prove his case by producing evidence both oral and
documentary. H has to stand on his strength but not on the
weaknesses of the defendant. He cannot file the present application at
this stage and collect evidence. Instead of doing so, the petitioner
filed the application seeking appointment of advocate commissioner.
Therefore, the same is premature. It amounts to collection of evidence
at this stage. On consideration of the said aspects only, vide impugned
order, the trial Court dismissed the said application. There is no error
in it. It is a reasoned and well-founded order. The petitioner failed to
make out any case to interfere with the impugned order. This revision
is liable to be dismissed.
12. Learned counsel for the petitioner placing reliance on the
principle laid down in Jajula Koteshwar Rao1 and Donadulu Uma
Devi2 contended that an application under Order - XXVI, Rule - 9 of
CPC can be filed at any stage. There is with quarrel with regard to the
said principle. But, it is not automatic. The petitioner has to lay
foundation and explain satisfactory reasons to appoint an Advocate
Commissioner. In the light of the aforesaid discussion, the petitioner
herein failed to explain the reasons to appoint Commissioner at this
stage.
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13. The present Civil Revision Petition is accordingly
dismissed. However, liberty is granted to the petitioner and the
respondent to raise all the contentions and grounds which they have
raised in the present revision before the trial Court and it is for the trial
Court to consider the same. In the circumstances of the case, there
shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending in
this revision shall stand closed.
_________________
K. LAKSHMAN, J
27th June, 2025
Mgr
