Telangana High Court
Vadlakondavenkatapathi vs Myakala Surya Prakash on 12 September, 2025
The Hon'ble Smt. Justice Renuka Yara
Civil Revision Petition No.663 of 2025
Order:
This is a Civil Revision Petition filed by the petitioners/respondents
aggrieved by the order dated 27.09.2024 passed by the learned Senior Civil
Judge, Jagtial in I.A.No.448 of 2024 in O.S.No.16 of 2023, wherein a
petition filed by the respondents/petitioners under Order 26, Rule 9 to
appoint an Advocate Commissioner to demarcate the land in Sy.No.154 or
156, note down the physical features as well as its location to ascertain the
suit survey number with the assistance of Mandal Surveyor, has been
allowed.
2. Heard Sri Sathvik Makunur, learned counsel for the revision
petitioners/respondents/defendants and Sri K. Shanthan Rao, learned
counsel for respondents/petitioners/ plaintiffs. Perused the record.
3. The respondents herein filed suit for declaration of title and recovery
of possession with respect to land in Sy.No.154 having VLT H.No.1-5-
203/79/1 admeasuring 818 sq.yds., situated at Ganeshnagar locality of
Jagtial Town and District. The petitioners in their written statement
pleaded that the suit land is situated in Sy.No.156 and is not part and parcel
of Sy.No.154 and that they are not aware of the report given by the Mandal
surveyor stating that the land comes under Sy.No.156 and no notice of
survey is given to them by the Mandal Surveyor when the survey was
conducted. Further, it is contended that the subject land is house site but
not agricultural land. The petitioners filed counter alleging that the Mandal
Surveyor on the direction of the District Collector submitted a report that
the land comes under Sy.No.156. The respondents filed a petition on
08.12.2019 before the Collector, Jagtial in Prajawani, and in turn, the
Collector communicated the same to the Commissioner, Municipality,
Jagtial and after the directions from the Collector, the Commissioner,
Municipality instructed the Town Planning Section (TPS) of Jagtial
Municipality, wherein, TPS went to the site under dispute on behalf of site
owners and in the presence of both parties, the TPS stopped the
construction work at plinth level. The respondents requested the District
Collector to direct the Surveyor to conduct the survey for identification of
the survey number of disputed land. The respondent No.2 filed building
permission application on 07.11.2019 online and verification and
inspection was done regarding the ownership documents, link documents
and boundaries as per the documents and site. An objection was raised by
the respondents and therefore, the building application was returned. The
respondents filed a writ petition vide W.P.No.26040 of 2019 before this
Court for inaction of the Commissioner, Jagtial Municipality on their
objection petition dated 08.11.2019. To prove their contention, the
petitioners have called for the report of the Mandal Surveyor. The Mandal
Surveyor report and its sketch map reveal that the suit schedule property is
located in Sy.No.156 which belongs to the petitioners herein. The
respondents are aware of the Mandal Surveyor report and therefore,
claimed that the petition under revision is not maintainable.
4. Upon examining the case of both parties, the learned Trial Court
allowed the petition appointing Advocate Commissioner to note down the
physical features and to identify location of suit schedule property with
respect to survey number, as such, the present Revision Petition is filed.
5. In grounds of revision, the petitioners contended that there was
already a survey conducted at the behest of the District Collector to
determine the identity of the same property and said report was furnished
to the respondents, however, said aspect has not been dealt by the Trial
Court. Further, it is contended that it is well settled legal position that an
application to appoint an Advocate Commissioner under Order 26, Rule 9
of CPC cannot be used to collect or generate fresh evidence in their
favour. The Trial Court did not consider its own order dated 18.12.2023 in
I.A.No.197 of 2023, wherein grant of temporary injunction was denied for
failure to establish prima facie case. On the basis of aforementioned
grounds, the petitioners prayed that the impugned order be set aside.
6. During arguments in the Revision Petition, there was an issue about
the maintainability of the Revision Petition as it had become infructuous. It
is vehemently contended by the learned counsel for the revision petitioners
that a misrepresentation was made about the revision petition becoming
infructuous when the Advocate Commissioner report was not submitted
before the Trial Court. Only upon filing of the revision petition, there was
a hasty survey conducted and the report was submitted on 02.05.2025 only
to defeat the revision petition.
7. The learned counsel for respondents pleaded that there was no false
representation about the revision petition becoming infructuous, at best, a
representation was made that the Advocate Commissioner has completed
the survey with the help of Mandal Surveyor during pendency of the
revision petition. It is vehemently denied that the Mandal Surveyor was
influenced for conducting the survey of the suit schedule property for the
sole purpose of defeating the rights of the petitioners under the present
revision petition. However, it is agreed by both the counsel that the
revision petition would become infructous only when the report is
submitted and not prior to such an event. Since the Civil Revision Petition
was filed much prior to the submission of the Advocate Commissioner
report, it is agreed that the present revision petition is maintainable.
8. Coming to the merits of the case of petitioners, they represented that
a survey of suit schedule property was conducted at the instance of
respondents herein. When an application for building permission was
submitted by them on 07.11.2019, survey was conducted in that regard at
the instance of this Court demarcating the suit schedule property showing
its location in Sy.No.156. Further, reference is made to the order passed by
the Trial Court in I.A.No.19 of 2023 wherein the relief sought for grant of
temporary injunction has been dismissed for failure to show prima facie
case. In fact, it is held that the respondents have resorted to suppression of
material facts and have approached the Court with unclean hands. Further,
the petitioners filed copy of the affidavit filed by the respondents in
W.P.No.26040 of 2019. In said writ petition, the prayer was to direct the
municipality to take necessary action against the illegal construction in suit
schedule property in Sy.No.154.
9. The learned counsel for the revision petitioners referred to judgment
of this Court between Dammalapati Satyanarayana and others v. Datla
Venkata Ramabhadra Raju @ D.V.R.Raju and another 1 wherein, it is
held that "Court has to identify the exact area of controversy and frame
necessary issues. The parties, in turn, have to adduce oral and documentary
evidence with reference to the issues, so framed. Unless these aspects are
clear, appointment of an Advocate Commissioner would amount to an
exercise to gather evidence .... If the report is submitted, even before
evidence is adduced, a stage may come, where the whole trial would
revolve around such report".
10. The learned counsel for respondents filed written arguments to the
effect that the suit is filed for declaration of title and recovery of
possession, that the petitioners are claiming land to be part and parcel of
Sy.No.156 whereas land is actually in Sy.No.154. The petitioners are relying
2006 (4) ALD 675
upon the Mandal Surveyor Report of which no notice was given to the
respondents. The existence of suit schedule property survey number 156 is
not in the knowledge of the respondents and therefore, said report cannot
be taken into consideration. An order was passed in the impugned I.A for
appointment of Advocate Commissioner and report was submitted on
02.05.2025. In written arguments, it is contended that since the report is
submitted, the revision petition has become infructuous. In that regard,
reference is made to order of this Court in C.R.P.No.761 of 1956, wherein,
it is held that the question as to when a Commissioner could be appointed
should be within the wide discretion of the Trial Court, but it cannot be
said that no Commissioner could be appointed before the issues are
framed or the evidence is led. A further reference is made to judgment of
this Court in CMA Nos.52 and 53 of 2020, wherein, this Court held that
localization of suit schedule property cannot be refused.
11. The learned counsel for respondents referred to the order of this
Court in CRP No.572 of 2023, wherein, it is held that there is no legal
embargo on appointment of Advocate Commissioner in a suit for bare
injunction where there is a serious dispute with regard to the identity and
localization of suit schedule land and that an Advocate Commissioner can
be appointed at any stage of the suit. A further reference is made to the
order of this Court in CRP No.2567 of 2022, wherein, it is held that there
is no specific bar for appointment of an Advocate Commissioner before
commencement of trial or framing of issues.
12. In the instant case, the dispute between the parties arose in the year
2019 when the respondents herein alleged that the petitioners are making
illegal construction in their land which is located in Sy.No.154. In that
context, a complaint was given to Jagtial municipality to take action against
the petitioners herein. When no action was taken, the respondents
approached this Court vide W.P.No.26040 of 2019 and on that, survey was
conducted through the Mandal Surveyor and said report came in favour of
the petitioners and against the respondents to the effect that the disputed
land is located in Sy.No.156 which belongs to the petitioners herein and
not in Sy.No.154 as claimed by the respondents herein. Thereafter, a civil
suit was filed vide O.S.No.16 of 2023 seeking declaration of title and
recovery of possession. In the said suit, no reference is made to the prior
litigation with respect to filing of writ petition or its disposal and allegation
is made that the petitioners herein have forcibly dispossessed the
respondents from the suit land on 05.03.2023 and therefore, suit is filed for
declaration of title and recovery of possession.
13. An Advocate Commissioner was appointed by this Court at the
instance of the respondents herein and a report is submitted, which shows
that the suit schedule property is situated in Sy.No.156. The said report
was submitted by the Mandal Surveyor K. Raju. As per said report, the suit
schedule property is shown as located in Sy.No.156 and not in Sy.No.154
as claimed by the respondents herein. Then the suit is filed in the year 2023
having made unsuccessful efforts to stop the construction of the
petitioners in the suit schedule property by way of giving complaint to the
Commissioner, Jagtial Municipality and filing of writ petition. The suit is
filed by completely suppressing the facts relating to the earlier litigation
before this Court. The respondents by suppressing the report submitted in
the writ petition got the Advocate Commissioner appointed in the suit by
filing the I.A under revision for fresh survey and new survey report shows
that the location of the suit schedule property as partly in Sy.No.156 and
partly in Sy.No.154.
14. It is an irony that the same Mandal Surveyor who submitted the
survey report dated 04.12.2019 in the writ petition also conducted the
survey through Advocate Commissioner appointed by the Trial Court vide
impugned order and submitted a different report with respect to location
of the suit schedule property. Only when the petitioners herein insisted
that there is an earlier survey report which was conducted at the instance
of the respondents and that second survey is conducted only to create
evidence in favour of the respondents, the same is denied alleging that the
respondents do not have knowledge about the survey report which is
submitted earlier. This Court is of the considered opinion that it is the
respondents who have initiated litigation against the petitioners by giving
complaint to the Commissioner, Jagtial municipality, filed writ petition and
suffered adverse order as the survey report was against them. Having
suffered adverse orders, the respondents have initiated second round of
litigation by filing a civil suit seeking declaration of title and recovery of
possession.
15. When the earlier survey report is against their interest, a petition is
filed by the respondents for appointment of Advocate Commissioner to
create fresh evidence to support their case. When the same Mandal
Surveyor conducted two surveys, one at the instance of this Court and one
at the instance of civil court and gives two different reports, the
genuineness of the reports has to be doubted. In the instant case, in case,
the earlier report was in favour of respondents, they would not have denied
knowledge and instead, would have relied upon the said report to seek
declaration. Only when the earlier Mandal Survey report is not in their
favour, the respondents suppressing the earlier survey report got an
Advocate Commissioner appointed through the impugned order to create
fresh evidence.
16. The sequence of events do not inspire confidence in the case of
respondents as they have not only suppressed the existence of earlier
Mandal Surveyor Report but are choosing to rely upon the second mandal
Surveyor Report only to suit their purpose. Said aspect was not considered
by the Trial Court. While the Tril Court has concluded there is no prima
facie case in favour of the respondents, has erroneously appointed an
Advocate Commissioner giving scope for creation of fresh evidence which
can come to the aid of the respondents. The same Mandal Surveyor
conducted survey of the same suit schedule property at two different
points of time giving two different reports with respect to location of the
suit schedule property in different survey numbers and the same raises
serious doubt about is conduct.
17. In any case, in view of existence of the earlier Mandal Surveyor
Report, there was no need for conducting a second survey. As such, there
are no merits in the order passed by the trial Court and the same is liable to
be set aside.
18. In the result, the impugned order dated 27.09.2024, in I.A.No.448 of
2024 in O.S.No.16 of 2023, on the file of the learned Senior Civil Judge,
Jagtial, is set aside and the Civil Revision Petition is allowed.
As a sequel, Miscellaneous Petitions, pending if any, stand disposed of
as infructuous.
_________________
RENUKA YARA, J
Date: 12.09.2025
GVL
