Telangana High Court
Pushpakar Lakshmi Bai vs Smt. Kaleru Nagamani on 29 July, 2022
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
CIVIL REVISION PETITION No.544 of 2022
ORDER:
Heard Sri H. Venu Gopal, the learned counsel for the petitioners, and Sri Somanchi Venkateshwarlu, the learned counsel for the respondents.
The petitioners are plaintiffs and the respondents are the defendants. The plaintiffs have filed a suit for perpetual injunction in respect of the agricultural land admeasuring Ac.0.06 ½ guntas in survey No.113/AA1/1 and other survey numbers and the said suit was numbered as O.S. No.127 of 2019 on the file of the Principal Junior Civil Judge, Medak. In the said suit the petitioners have filed I.A. No.877 of 2021 under Order XXVI Rule 7 read with Section 151 of the Code of Civil Procedure for appointment of an Advocate Commissioner to survey, demarcate and identify the suit schedule property and also the land claimed by the defendants. Vide order, dated 17.01.2022, the Principal Junior Civil Judge-cum-Judicial First Class Magistrate, Medak, has dismissed the I.A.No.877 of 2021 in O.S.No.127 of 2019. Aggrieved thereof, by the present Civil Revision Petition is filed.
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Learned counsel for the petitioners has stated that the lower Court, without properly appreciating the facts of the case and the reasons for filing the I.A. for appointment of the Advocate Commissioner, has dismissed the application in a mechanical and pedantic manner on legally untenable grounds. It is stated that the reason given by the trial Court for dismissing the interim application for the appointment of Advocate Commissioner is that the total area of Sy.No.113 is Acs.6.35 gts., and that the other pattadars are not made parties, is totally irrelevant for deciding the application filed for appointment of an Advocate Commissioner and against the settled principles of law and the judgments of this Hon'ble Court. The learned counsel has stated that the main grievance of the petitioners, who are the plaintiffs in the suit, is that the respondents, who are defendants in the suit, are interfering with their possession and the suit is filed for only an extent of Ac.0.06½ gts. Therefore, the question of making the other pattadars as party defendants in the said suit does not arise as the plaintiffs are not claiming any relief against other pattadars. Moreover, the application filed for appointment of an Advocate- Commissioner is for the purpose of surveying and demarcating the land of the petitioners admeasuring Ac.0.06½ gts and that 3 of the defendants only. That there is a serious dispute with regard to the location and identification of the suit schedule property and the land claimed by the defendants. Therefore, it is imperative that an Advocate Commissioner be appointed for the said purpose. That unless and until an Advocate- Commissioner with the help of the surveyor inspects the spot, surveys and demarcates the land of the petitioners as well as the land claimed by the respondents, the issue before the trial Court cannot be decided. It is further stated that when the defendant is disputing the survey number (sub-division) and the location of the suit schedule property, the only manner in which the issue in the suit can be decided is by way of survey and demarcation of the subject land by an Advocate Commissioner and therefore prayed this Court to allow the present revision by setting aside the order of the trial Court and appoint an Advocate Commissioner.
Per contra, the learned counsel for the respondents has stated that the trial Court has rightly dismissed the application filed by the petitioners duly taking into consideration the fact that the petitioners have to first prima facie establish their title and physical possession over the suit schedule property. In the absence of any evidence to show that the petitioners are in 4 physical possession of the suit schedule land or that there is any land available on ground belonging to the petitioners, the question of appointing an Advocate Commissioner does not arise and in case an Advocate-Commissioner is appointed, it would amount to gathering of the evidence only, which is impermissible under the law. The lower Court has rightly dismissed the said application and there are no merits in the present C.R.P., which warrants any interference by this Court and relied on Sagi Vijaya Ramachandra Raju vs. Koppisetti Satyanarayana1, Yenugonda Bal Reddy vs. Manemma2 and Sarala Jain vs. Sangu Gangadhar3 to buttress his case and prayed to dismiss the C.R.P. A perusal of the record shows that the petitioners herein are the plaintiffs before the trial Court and they have filed the suit for injunction claiming that they are the owners and possessors of land to an extent of Ac.0.06½ gts. in survey Nos.113/AA1/2/1, 113/AA1/1/2 and 113/AA1/1 whereas the defendants in the suit, who are arrayed as respondents in the present revision, are claiming the land in survey Nos.113/AA2 and 113/AA3 and they have further stated that there is no land available physically on ground. Admittedly, in the present case, 1 2009 (5) ALD 459 2 2011 (2) ALD 472 3 2016 (3) ALD 197 5 the trial has not yet commenced. Therefore, this Court prima facie of the opinion that the interim application filed by the petitioners for appointment of an Advocate Commissioner for the purpose of surveying and demarcating the suit schedule land is a premature one. In any civil suit, the plaintiff has to first establish that he is the owner and possessor of the suit schedule land by adducing both oral and documentary evidence. Once the evidence of both the parties is closed and even then the Court comes to a conclusion that the issue before the Court cannot be resolved except by appointing an Advocate Commissioner, who with the help of surveyor, to survey, demarcate and identify the land claimed by the petitioner and that of the respondent, can definitely do so on its own or on an application being filed. The Court has ample power to appoint an Advocate-Commissioner for the said purpose. But, even before the trial has commenced, the appointment of an Advocate Commissioner has been deprecated by various Courts. Though there is no hard and fast rule that prohibits the appointment of an Advocate Commissioner for surveying, demarcating and identifying the suit schedule property by the trial Courts, the Courts have to pass orders on the basis of the facts and circumstances of each case, the issue that needs to be 6 adjudicated upon and more importantly the stage of trial. However, the reason given by the trial Court that the other pattadars of Sy.No.113 need to be made as party defendants in the present suit for the purpose of appointing an Advocate- Commissioner is not correct and totally irrelevant. The petitioners are not claiming any relief against the other pattadars and therefore they need not make the other pattadars as parties to the suit. The other ground for dismissing the I.A. is that an Advocate Commissioner can survey and demarcate the total survey number and not the sub-division in the said survey number, is also without any legal basis. Whenever an Advocate Commissioner is appointed for the purpose of surveying and demarcating the suit schedule property, he will take the help of the Mandal Surveyor and demarcate the suit schedule property with the help of the available records like tippons, village map, layout or any other record. After survey, the site plan will be prepared duly demarcating the survey number and its sub-division, the location of the site and on the basis of the said report, the trial Court can come to a conclusion as to whether the suit schedule property is falling in a particular survey number or different survey number or any overlapping of survey number is there, whether the land 7 claimed by the petitioner is different from the one claimed by the defendants or one and the same. Therefore, it cannot be said that an Advocate Commissioner cannot be appointed just because there are sub-divisions in a particular survey number.
However, for the reasons cited above, this Court does not find any reason to interfere with the order passed by the trial Court and accordingly, the Civil Revision Petition is dismissed leaving it open to the petitioners to file an application for appointment of an Advocate-Commissioner if they are so advised after the evidence of both the parties is closed. On such application being filed, the Trial Court shall consider the same on its own merits without being influenced by the order passed in I.A. No.877 of 2021, dated 17.01.2022, or the observations made by this Court in this order.
Miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
__________________________ A.ABHISHEK REDDY, J Date : 29-07-2022 smr