Telangana High Court
Sri Tangella Ranga Reddy vs Koppula Srinivas Reddy on 24 July, 2023
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
CIVIL REVISION PETITION Nos.297 of 2022 and 846 of 2023
COMMON ORDER:
C.R.P.No.297 of 2022 is filed by the petitioner - plaintiff against the order dated 17.01.2022 in I.A.No.849 of 2021 in I.A.No.583 of 2021 in O.S.No.279 of 2021 on the file of the Principal Junior Civil Judge-cum-Judicial Magistrate of I Class, Suryapet appointing an Advocate Commissioner to note down the physical features of the suit land.
2. C.R.P.No.846 of 2023 is filed by the petitioner - plaintiff against the order dated 27.12.2022 in I.A.No.946 of 2022 in I.A.No.583 of 2021 in O.S.No.279 of 2021 on the file of the Principal Junior Civil Judge, Suryapet for dismissing the petition filed by the petitioner to advance the hearing of I.A.No.583 of 2021 from 23.11.2023.
3. Heard the learned counsel for the petitioner - plaintiff and the learned counsel for the respondents - defendants.
4. The learned counsel for the petitioner submitted that the petitioner - plaintiff filed the suit for perpetual injunction against the respondents with regard to the plaint schedule properties to an extent of Ac.1.00gts. out of Ac.2.00gts.in Survey No.47/2 situated at Dacharam Revenue Village of 2 Dr.GRR, J crp_297_2022 & crp_846_2023 Athmakur (S) Mandal, Suryapet District and another schedule of land to an extent of Ac.1.18 gts. in Survey No.417/2/1 situated at Athmakur (S) Village and Mandal, Suryapet District. The petitioner also filed an application vide I.A.No.583 of 2021 in the said suit for ad interim injunction against the respondents restraining them from causing interference with the peaceful physical possession and enjoyment of the suit property. The respondents filed their written statement in the suit and counter in I.A.No.583 of 2021 denying the claim of the petitioner. The respondents had filed I.A.No.849 of 2021 seeking appointment of an Advocate Commissioner to note down the physical features of the suit lands as well as to ascertain the survey numbers, boundaries and extents. The petitioner filed counter opposing the said petition. But the court below on hearing both sides, passed an order dated 17.01.2022 appointing an Advocate Commissioner to note down the physical features of the suit land and its boundaries with the help of Mandal Surveyor. Challenging the same, he preferred C.R.P.297 of 2022.
4.1. He further submitted that the court below was not taking I.A.No.583 of 2021 for hearing. No ex-parte order was granted by the court below. The petitioner filed I.A.No.946 of 2022 seeking advancement of I.A.No.583 of 2021 from 28.11.2023 to the nearest date for enquiry, but the court below on hearing 3 Dr.GRR, J crp_297_2022 & crp_846_2023 both sides dismissed the I.A. by order dated 27.12.2022. Aggrieved by the same, the petitioner preferred C.R.P.846 of 2023. 4.2. He further contended that the trial court ought to have seen that the suit filed by the petitioner was for simpliciter injunction in respect of land in Survey No.47/2 to an extent of Ac.1.00 gts. out of Ac.2.00 gts. with specific boundaries and also in Survey No.417/2/1 to an extent of Ac.1.18 gts. with specific boundaries. The respondent / defendant No.2 was claiming to be the owner of the land in Survey No.47/3 to an extent of Ac.1.07 gts., but he failed to furnish the boundaries. However, the boundaries mentioned in sadabainama were completely different from the boundaries of the land of the petitioner. As such, there was no confusion or dispute with regard to identification of suit schedule properties. The land claimed by respondents 1 and 2 in Survey No.39 was to an extent of Ac.3.00 gts. The respondents failed to mention the boundaries of the said property in their written statement or in the petition, but were falsely claiming that the boundaries mentioned by the petitioner in Survey No.417 belonged to Survey No.391, which was absolutely false and without any basis. The court below committed a serious error in allowing I.A.No.849 of 2021 in I.A.No.583 of 2021 in O.S.No.279 of 2021 by order dated 17.01.2022. Without there being any necessity or any dispute with regard to identification of property, the court erroneously passed an order appointing an Advocate 4 Dr.GRR, J crp_297_2022 & crp_846_2023 Commissioner to note down the physical features of the suit schedule lands with the help of Mandal Surveyor. The burden of proof would lie on parties to prove their right to the property and their title, boundaries and extents by producing relevant documents and they could not shift their burden on to the court. The petition filed by the respondents was aiming to collect the evidence in support of their false claim. Gathering evidence during pendency of proceedings was not permissible under the law. The respondents without furnishing boundaries of their lands, could not contend that the boundaries of their lands were being shown as boundaries for plaint schedule properties. The court below erred in passing the order without there being evidence on record about the boundary dispute or identity dispute of the properties claimed by the petitioner and respondents. The court below ought to have seen that in a suit for simple injunction, an Advocate Commissioner could not be appointed. The said order passed by the court below was against the settled legal position and law and prayed to set aside the same.
4.3. He further contended that I.A.No.583 of 2021 filed by the petitioner for interim injunction was completely different from I.A.No.849 of 2021 filed by the respondents for appointment of an Advocate Commissioner. The two applications were independent and for different reliefs. They were not interdependent on each other. The trial court failed to see that there was a threat 5 Dr.GRR, J crp_297_2022 & crp_846_2023 of dispossession to the petitioner from the suit property and as such, ought to have advanced the date of hearing in I.A.No.583 of 2021 by allowing I.A.No.946 of 2022. The court below was wrong in applying the proposition of law cited in the matter of Sridevi v. I.V.L.N. Venkata Laxmi Prasad1. 4.4. The learned counsel for the petitioner relied upon the judgment of the High Court of Andhra Pradesh in A.Gopal Reddy v. R.Subramanyam Reddy and another2 and in Nambada Varaha Narasimhulu v. Karanam Dalamma and two others3.
5. The learned counsel for the respondents on the other hand contended that though the plaintiff stated that he was having Ac.2.00 gts. in Survey No.47/2, filed the suit for only Ac.1.00 gts. of land in the above mentioned survey number. The plaintiff also contended that Survey No.417/2/1 to an extent of Ac.1.18 gts. was adjacent to Survey No.47/2. The plaintiff was having only Ac.1.00 gts. of land in Survey No.47/2, but against the actual possession, he got it recorded as Ac.2.00 gts. in collusion with Revenue Authorities by showing the boundaries of land of the respondent No.2, as that of him. The respondents 1 and 2 were having Ac.1.20 gts. each in Survey No.391. The boundaries mentioned by the plaintiff with regard to Survey No.417 to an extent of Ac.1.18 gts. belonged to Survey No.391 to an extent of Ac.3.00 gts. 1 2020 (6) ALD 99 (TS) (DB) 2 2013 (4) ALD 347 3 2014 (4) ALD 610 6 Dr.GRR, J crp_297_2022 & crp_846_2023 Survey No.417 was far away. The plaintiff was not in possession of land claiming in Survey No.417. Taking advantage of the disturbances in the revenue record, he was showing the boundaries of land belonging to the defendants as that of his. To ascertain the correct survey number, boundaries as well as physical features of the land, as it was necessary to appoint an Advocate Commissioner, the trial court allowed I.A.No.849 of 2021 in I.A.No.583 of 2021 in O.S.No.279 of 2021. The petitioner - plaintiff filed pattedar passbook, but failed to file any title documents. The respondent No.2 filed an un- registered sale deed showing the boundaries. When there was a controversy with regard to the identity of the property, it was necessary to appoint an Advocate Commissioner. There was no bar to appoint an Advocate Commissioner even in a suit for injunction. Without deciding the said I.A., the application for grant of interim injunction could not be decided. There was no error committed by the trial court in passing the above orders and relied upon the judgment of the High Court of Andhra Pradesh in Velaga Narayana and Others v. Bommakanti Srinivas and Others 4 and of the judgment of the common High Court for the State of Telangana and Andhra Pradesh in K.Dayanand and Another v. P.Sampath Kumar5 dated 11.11.2014. He also relied upon the judgment of the High Court of Andhra Pradesh in 4 2014 (4) ALT 152 5 2014 LawSuit (Hyderabad) 716 7 Dr.GRR, J crp_297_2022 & crp_846_2023 G.L.Purusotham and Others v. Y.Nagaraju and Others6 and of the High Court for the State of Telangana in P.Sridevi v. I.V.L.N. Venkata Lakshmi Narsimha Prasad (cited supra).
6. Perused the record.
7. The record would disclose that the petitioner - plaintiff filed a suit for perpetual injunction claiming ownership and possession over the lands in Survey No.47/2 to an extent of Ac.1.00 gts. out of Ac.2.00 gts. situated at Dacharam Revenue Shivar of Athmakuar (S) Mandal in Suryapet District and was also claiming ownership and possession of the agricultural wet land in Survey No.417/2/1 to an extent of Ac.1.18 gts. situated at Athmakur (S) Revenue Village and Mandal in Suryapet District with specific boundaries. He stated that the land of the defendants was towards the eastern side of his land in an extent of Ac.1.18 gts. in Survey No.417/2/1. He also filed I.A.No.583 of 2021 for grant of ad interim injunction during the pendency of the suit. Notices were issued to the respondents / defendants.
8. After receipt of notices, the respondents - defendants made their appearance before the court and filed their written statement as well as counter in I.A.No.583 of 2021. In their written statement, the defendants contended that the petitioner - plaintiff had shown the boundaries of land to an extent of 6 LAWS (APH)-2015-8-51 8 Dr.GRR, J crp_297_2022 & crp_846_2023 Ac.1.07gts. in Survey No.473, which was exclusively belonged to defendant No.2 as that of his land in Survey No.47/2. The defendants contended that the plaintiff was having a bore well in his Ac.1.00 gts. of land in Survey No.47/2. Whereas, the defendant No.2 was having Ac.1.07 gts. of land and raised paddy crop through lease holder Gangaraboina Venkanna and the said lease holder raised paddy crop with water source from his land, which was adjacent to the land of defendant No.2 for the past ten (10) years. The defendant No.2 contended that the grandfather of the defendants purchased Ac.1.07 gts. of land in Survey No.47 from one Bheemayya on 10.04.1986 through simple sale deed and the land was not mutated in the name of defendant No.2, though he was filing applications before the Revenue Authorities for regularization of sadabainama. They further contended that the plaintiff, though having only Ac.1.00 gts. of land in Survey No.47/2, but got recorded the land as Ac.2.00 gts. in his name in collusion with the Revenue Authorities and was claiming the land to an extent of Ac.1.00 pertaining to the defendant No.2. The defendants also contended that the defendants 1 and 2 were having Ac.1.20 gts. of land each in Survey No.391 and the said land was their ancestral property and their names were entered in the revenue records and the revenue authorities also issued pattedar passbook and title deed in their favour. The boundaries mentioned by the plaintiff with regard to Survey No.417 to an extent of Ac.1.18 gts. belonged to Survey No.391 to an extent of Ac.3.00 gts. The 9 Dr.GRR, J crp_297_2022 & crp_846_2023 Survey No.417 was far away and the plaintiff was not in possession of land claiming in Survey No.417 and he was falsely claiming by showing the boundaries of land of Ac.3.00 belonging to the defendants as that of his in Survey No.417.
9. The defendants filed I.A.No.849 of 2021 in I.A.No.583 of 2021 under Order XXVI Rule 9 read with Section 151 of C.P.C. for appointment of an Advocate Commissioner to note down the physical features of the suit land as well as to ascertain the survey numbers, boundaries and extents with the help of Mandal Surveyor.
10. The contention of the learned counsel for the revision petitioners was that this was a simple suit for injunction. The burden would lie upon the petitioners
- plaintiffs to prove their possession. An Advocate Commissioner could not be appointed in a suit for injunction. It would amount to gathering evidence and relied upon the judgment of the High Court of Andhra Pradesh in A.Gopal Reddy v. R.Subramanyam Reddy and another (cited supra), wherein it was held that:
"....3. The suit filed by the petitioner is the one for the relief of perpetual injunction. The only question that assumes significance in that suit is whether the plaintiff is in possession and enjoyment of the schedule property. The burden squarely rests upon the petitioner to prove the possession. The appointment of Commissioners to note the physical features or to undertake other related activities in a 10 Dr.GRR, J crp_297_2022 & crp_846_2023 suit for injunction is a rarity. The reason is that the plaintiff cannot be permitted to gather evidence to prove his possession and he has to satisfy the Court through oral and documentary evidence. When that is the law on the subject, the appointment of Commissioners at the instance of the defendant in such suits is a still rare phenomenon. At any rate, the occasion to appoint an Advocate- Commissioner would arise, if only the trial of the suit is in progress and a typical question, which needs the examination by a Commissioner arises. The appointment of a Commissioner cannot be made at the threshold. Such an effort would be treated as a measure to gather evidence."
11. He further relied upon the judgment of the High Court of Andhra Pradesh in Nambada Varaha Narasimhulu v. Karanam Dalamma and two others (cited supra), wherein also it was held that:
"....Having considered the rival submissions, this Court is of the view that it cannot be inferred that the appointment of Advocate Commissioner / Surveyor for specifically localizing the plaint schedule vacant site and identifying in which survey the disputed property is located cannot be done at the instance of the parties to the dispute. As a matter of fact, the only method by which the identification of the property can be made is by way of ordering conduct of survey particularly when the dispute between the parties is with regard to which survey number the disputed property is situated in."
12. Thus, as seen from the above judgments, the Hon'ble High Court in Nambada Varaha Narasimhulu Case, had not stated that appointment of Advocate Commissioner cannot be made in a suit for perpetual injunction and stated that the only method by which the identification of the property can be 11 Dr.GRR, J crp_297_2022 & crp_846_2023 made is by way of ordering conduct of survey particularly when the dispute between the parties is with regard to which survey number, the disputed property is situated in.
13. In the judgment in A.Gopal Reddy v. R.Subramanyam Reddy and another (cited supra) also, this Court, though stated that the appointment of Commissioner to note down the physical features in a suit for injunction is a rarity, the occasion to appoint an Advocate Commissioner would arise if only the trial of the suit was in progress and it could not be made at the threshold and it would not be a measure to gather evidence. It was not held that an Advocate Commissioner could not be appointed in a suit for injunction.
14. On the other hand in Velaga Narayana and others v. Bommakanti Srinivas and others (cited supra), the High Court of Andhra Pradesh held that:
"....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 12 Dr.GRR, J crp_297_2022 & crp_846_2023 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."
15. In K.Dayanand and Another v. P. Sampath Kumar (cited supra), the learned Single Judge of the combined High Court for the State of Telangana and for the State of Andhra Pradesh, on considering various judgments, on this aspect, opined that:
"....25. There is no absolute bar on appointment of Commissioner in a suit for injunction also as per the law laid down in the above referred judgments nor the provisions of Section 75 and Order XXVI Rule 9 do impose such a prohibition. The respondent - plaintiff filed the present application for appointment of Advocate Commissioner to note down the physical features of the schedule property only and not for the purpose of finding out who is in possession of the property. The court below recorded valid reasons for appointment of Commissioner. The Court below in the considered opinion of this Court is perfectly justified in appointing the Advocate Commissioner and that the said order is in accordance with the principles laid down in the above referred judgments."
16. However, this High Court in P.Sridevi v. IVLN Venkata Lakshmi Narsimha Prasad (cited supra), which was relied by the trial court, held that:
"....37. When the appellants are claiming land in Survey No. 85/1, a separate sub-division of Survey 13 Dr.GRR, J crp_297_2022 & crp_846_2023 No. 85, and the respondents are claiming land in Survey No. 85/2, a different sub-division in the same survey number, it was incumbent on the part of the Court below to first appoint a Surveyor in I.A. No. 620 of 2017 and get first Sy. No. 85/1 and Sy. No. 85/2 on the ground and the plaint schedule land localized as was sought by the appellants.
....41. Thus when there is a dispute of localization or demarcation of property, the best course of action is to appoint an Advocate-Commissioner / Surveyor for localization.
42. We find it very strange that the Court below chose not to decide I.A. No. 620 of 2017 first, though it had been filed in April, 2017 and proceeded to decide I.A. Nos. 618 and 619 of 2017 first.
43. We do not appreciate this course of action being adopted by the Court below at all.
44. In our considered opinion, the Court below should have first allowed I.A. No. 620 of 2017 and directed demarcation of Sy. No. 85/1 and Sy. No. 85/2 and the property claimed by the appellants and then proceeded to decide I.A. Nos. 618 and 619 of 2017.
....48. The Court below could not have refused localization of the suit schedule property by refusing to decide I.A. No. 620 of 2017 and then blame the appellants for their failure to localize the suit schedule property, and then deny relief in I.A. Nos. 618 and 619 of 2017.
....51. The Court below shall allow I.A. No. 620 of 2017 and cause a survey done to localize/demarcate/identify Sy. No. 85/1 and Sy. No. 85/2 and also the plaint schedule property which is subject matter of O.S. No. 497 of 2017 at the earliest though a surveyor (not below the rank of Asst. Surveyor, Survey and Land Records) with reference to the village map, tippan and other statutory documents including the sale deeds relied upon by both sides; it shall then take into account the Survey Report after hearing objections of any party thereto, and decide I.A. Nos. 618 and 619 of 2017 afresh within a period of eight (08) weeks from the date of receipt of copy of the order."14
Dr.GRR, J crp_297_2022 & crp_846_2023
17. Though, the courts are normally reluctant to appoint Commissioner for noting physical features of the suit schedule property particularly in a suit for injunction since the same would amount to collecting evidence in favour of one of the parties, but, having regard to the facts and circumstances of the case and particularly when there is a dispute regarding boundaries and extents of the properties and the survey numbers in which they were located, the facts have to be physically verified and measuring of land on the spot by a Surveyor would become necessary. When a party has a right to make use of the provision of law for proper adjudication of the matter in controversy, he is to be permitted to avail that provision otherwise the same would become redundant. As the trial court had taken proper care in directing the Commissioner not to conduct any enquiry as to who is in possession of which property and only directed the Advocate Commissioner to note down the physical features of the suit land to the extent of land in Survey Nos.47/2, 47/3, 391/A, 391/A/1 and 417/2/1 and their boundaries with the help of Mandal Surveyor, this Court considers that there is no patent error in the order of the trial court.
18. Therefore, the order under revision does not suffer from any fundamental infirmity nor any jurisdictional error which warrants interference of this Court. As it is desirable that such localization is carried out at the beginning of the litigation, this Court does not find any patent error in dismissing the petition 15 Dr.GRR, J crp_297_2022 & crp_846_2023 filed by the petitioner - plaintiff seeking an early hearing in deciding the petition under Order XXXIX Rule 1 and 2. As the trial court had also stated that the petitioner was at liberty to make an application to advance the above I.A. for hearing and disposal after the disposal of the Civil Revision Petition by this Court, the petitioner - plaintiff can make an application to advance the hearing of the I.A. after the Advocate Commissioner submitted his report in I.A.No.849 of 2021 in I.A.No.583 of 2021 in O.S.No.279 of 2021.
19. In the result, both the Civil Revision Petitions are dismissed confirming the orders of the trial court. No costs.
As a sequel, miscellaneous applications pending in these petitions if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date: 24th July, 2023 Nsk.