Telangana High Court
Harish Ramnani, vs B.Dayasagar on 20 June, 2025
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
CIVIL REVISION PETITION No. 2858 of 2023
ORDER:
1. The present Civil Revision Petition is preferred aggrieved by the order dated 01.08.2023 in I.A. No. 291 of 2022 in O.S. No. 159 of 2015 passed by the Principal Senior Civil Judge, Medchal Malkajgiri District at Medchal.
2. The revision petitioner is the defendant in the main suit filed by the respondents herein vide O.S. No.159 of 2015 for cancellation of rectification deed dated. 13.11.2002 and mandatory injunction under Order VII Rule 1 r/w Section 26 of C.P.C.
3. The respondents herein have filed the underlying interlocutory application under order XXVI Rule 9 r/w Section 151 of C.P.C in the main suit filed by them for appointment of an advocate commissioner to localize the suit schedule property by survey and demarcation of Sy.Nos.121 & 122 of Thoomkunta Village and to submit report with regard to the extent of land 2 covered by the both the survey numbers of the suit schedule property.
4. The court below considering the nature of relief sought for in the suit, had partly allowed the underlying Interlocutory Application. Aggrieved by the same the petitioner herein had filed the present revision.
5. Heard Sri G.M. Mohiuddin, learned Counsel for the petitioners, and Sri. K. Ravi Mahendar learned Counsel for Respondent No.1 and perused the record.
6. The Revision Petitioner contends that the respondents have filed the suit for cancellation of the Rectification Deed dated 12.11.2002 is not based on any valid legal ground such as fraud, misrepresentation, or coercion. Instead, it has been filed solely due to a land dispute with one K. Satyanarayana Goud.
7. The petitioner contends that the suit is clearly barred by limitation and is liable to be dismissed on that ground alone and no survey report has been filed to support the claim of re- verification of lands by the respondents, despite referring to it in pleadings and evidence.
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8. The petitioner contends that the non-joinder of K. Satyanarayana Goud, a necessary party, renders the main suit and underlying interlocutory application defective and the said interlocutory application is a disguised attempt to gather evidence, which is impermissible, especially at the final stage of the Suit.
9. The petitioner contends that the respondents have not stated any valid reason for seeking cancellation of the rectification deed dated. 13.11.2002 and do not dispute the identity, possession, or extent of the Petitioner's property; that the respondent No.1 has no locus standi to seek survey, having already sold the entire extent in the relevant survey numbers inasmuch as the petitioner has been in continuous possession since purchase from the respondents herein under a registered sale deed dated. 12.06.2002 and constructed a boundary wall.
10. The petitioner also contends that the rectification deed was executed by the respondents themselves after noticing an error in survey number, and the sale was made for valid consideration and the underlying application is filed only to gather evidence and is liable to be dismissed.
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11. Per contra, respondents contend that, they have filed a suit vide O.S. No. 159 of 2015 for cancellation of the Rectification Deed dated 13.11.2002 and for a mandatory injunction to execute a fresh rectification deed correcting the survey numbers and extents mentioned in the principal Sale Deed dated 12.06.2002 inasmuch as the existing deed is not showing the true physical location of the schedule property. Respondent No.1 further contends that the suit schedule property originally belonged to his father and, upon his demise, devolved upon to him, his mother, and his brother, all of them executed General Power of Attorney in his favour authorizing him to deal with the said land.
12. The respondents contend that an extent of Ac. 2.15 guntas of Sy. No. 122 of the suit schedule property was sold by the respondents to the petitioner through the registered sale deed dated. 12.06.2002 without any survey or demarcation with regard to its location. They further contend the petitioner requested them to execute Rectification Deed stating that the land purchased by him entirely was not situated entirely in Sy. No. 122 as mentioned in the sale deed and further informed the respondents that the land 5 sold is located in two survey numbers i.e. an extent of Ac. 2.03 guntas in Sy. No. 121 and Ac. 0.12 guntas in Sy. No. 122. Therefore, the rectification deed was executed in good faith on 13.11.2002.
13. The respondents further contend that where a false claim was raised by one K. Satyanarayana Goud, then respondents undertook a re-verification using authenticated survey records and discovered that the property is actually situated in Sy. No. 121 to an extent of Ac. 1.12 gts and in Sy. No. 122 to an extent of Ac. 1.03 gts which is contrary to the details in the rectification deed. The respondents further contend that upon requesting the petitioner to cancel the incorrect deed and enter into a new one reflecting the accurate position, the petitioner refused to cooperate.
14. The Respondents also contend that the only issue involved is with regard to the correct survey numbers and extents of the suit schedule property in each of such survey numbers herein. Since, the petitioner did not agree for a proper verification, the respondents had no alternative but to file the subject suit and seek for appointment of an Advocate Commissioner for surveying the 6 land. The respondents further contend that such a survey, with the help of the Government Surveyor and authenticated records, is essential to localize the suit schedule property correctly and enable the Court to adjudicate the matter effectively.
15. The Trial Court upon hearing both sides and on perusal of the record, observed that the Advocate commissioner can be appointed to get the suit schedule property localized by survey and demarcation of Sy.Nos.121 & 122 of Thoomkunta Village and to submit report with regard to the extent of land covered by the schedule property of respondents herein in each of the above two survey numbers and requested to complete the commissioner work as early as possible preferably within 45 days from the date of issuance of warrant of commission.
16. I have taken note of the respective contentions urged.
17. The sole issue falling for consideration before this Court, is as to whether an Advocate commissioner can be appointed in a suit for cancellation of rectification deed and mandatory injunction.
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18. In order to examine the issue at hand, it is beneficial to refer to Order 26 Rule 9 of the Code, 1908 which reads as under:
Commissions for local investigations:
"In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
From a reading of the said rule, it would clear that it is the power of the trial Court to appoint an advocate commissioner and is discretionary in nature.
19. The erstwhile High court for the state of Andhra Pradesh in Velaga Narayana and Ors. Vs. Bommakanti Srinivas and Ors 1, observed that such discretionary powers vested in the court should be exercised in a judicious manner while taking into consideration the nature of the dispute. The relevant observations are as under: 1
2014 (3) ALD 605 8 "13. Under Rule of Order 26 in any suit in which the Court deems a local investigation is necessary or proper for the purpose of elucidating any matter in dispute, it can issue a commission. Though issuing commission is discretionary, the Court has to exercise discretion in an appropriate and judicious manner. The purpose and object of local investigation under Rule 9 is to have the evidence from the spot itself to have a correct and proper understanding of the dispute between the parties. The local investigation report submitted by the commissioner enables the Court to make a correct assessment of evidence on record. When the Court is of the opinion that the material on record requires elucidation, it would be just and reasonable to issue a commission for the said purpose. A commission at the instance of one of the parties to find out as to who is in possession of the property cannot be issued as it enables the party seeking appointment of commissioner to collect or gather evidence. But, where there exists a dispute regarding suit property, the Court has to necessarily issue a commission with the assistance of a surveyor, otherwise, it would be highly difficult for the Court to completely and effectively resolve the dispute and issuing such commission would not amount to collection of evidence. Commission for the said purpose can be issued prior to or after the parties let in their evidence."
20. Thus, the nature of the suit plays a crucial role in considering the appointment of an Advocate Commissioner. In the present case, the suit is instituted by the respondent's seeking cancellation of the Rectification Deed dated 13.11.2002 and for a mandatory 9 injunction directing execution of a fresh Rectification Deed correcting the survey numbers and extents mentioned in the principal Sale Deed. On applying the legal principle enunciated above to the facts of the present case, it is evident that the provisions of Order XXVI Rule 9 CPC are not attracted.
21. It is a settled proposition of law that the power of the Court under Order XXVI Rule 9 CPC to appoint an Advocate Commissioner is discretionary and must be exercised judiciously, having regard to the facts of the case and the nature of the relief sought. In the present case, the suit has been filed for cancellation of the Rectification Deed dated 13.11.2002 and for a mandatory injunction directing execution of a fresh rectification deed for correction of survey numbers and extents mentioned in the principal Sale Deed. It is pertinent to note that the respondents themselves have already undertaken re-verification of the location of the lands sold to various purchasers in Survey Nos. 121 and 122 of Toomkunta Village with the aid of authenticated survey records. Even after such re-verification, no necessity arises for the appointment of an Advocate Commissioner to get the land 10 surveyed once again inasmuch as the dispute herein primarily revolves around the legality and validity of the rectification deed and does not pertain to the physical features, identification, or possession of the subject property. Hence, the provision of Order XXVI Rule 9 CPC is not attracted to the present case.
22. It is also pertinent to note that the very foundation of the respondent's suit before the trial court rests upon the so-called resurvey allegedly undertaken at their instance, which is claimed to indicate that the land sold to the petitioner is situated in survey numbers different from those mentioned in the rectification deed. It is incumbent upon the respondent to establish these claims in the suit by adducing proper documentary evidence and by submitting themselves for cross-examination by the petitioner/defendant. However, without undertaking the said essential exercise, the respondent has filed the present interlocutory application with an objective to collect or gather the evidence to substantiate their claim made in the suit. Thus, such an action of using interim proceedings to secure evidence that should otherwise be adduced during the trial cannot be permitted under law. 11
23. It is further pertinent to note that the principal sale deed was executed on 12.06.2002 and the rectification deed was executed within a short period i.e., on 12.11.2002 and the cross examination of the petitioner was done on 02.04.2019. whereas the underlying interlocutory application was filed in year of 2022. From the above series of the events, it is evident that underlying interlocutory application for appointment of an Advocate Commissioner is filed after the conclusion of the trial. Thus, it cannot be entertained. (See: K.K. Velusamy v. N. Palanisamy2)
24. Hence, in the present case, no issue arises that necessitates local investigation or physical verification of the property through the appointment of an Advocate Commissioner. The trial court has passed a general order directing such appointment, without considering the specific nature of the suit. It is pertinent to note that the present suit is for cancellation of a rectification deed, which is purely a question of title and legality of documents, and not one involving disputed boundaries or physical features that require on- 2 (2011) 11 SCC 275 12 site inspection. Thus, the provisions of Order XXVI Rule 9 CPC, have no application to the present proceedings.
25. Therefore, in the light of the settled position of law, this Court is of the view that the impugned order dated. 01.08.2023 appointing an Advocate Commissioner suffers from infirmity and perversity.
26. Resultantly, this Civil Revision Petition is allowed. The order dated 01.08.2023 in I.A. No. 291 of 2022 in O.S. No. 159 of 2015 passed by the Principal Senior Civil Judge, Medchal Malkajgiri District at Medchal is set-aside. No order as to costs.
Consequently, miscellaneous petitions pending if any shall stand closed.
___________________ T. VINOD KUMAR, J Date: 20.06.2025 MRKR/VSV