Telangana High Court
Singidi Ram Reddy And Another vs Kotra Sudhakar Gupta on 31 January, 2023
THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI
CIVIL REVISION PETITION No. 2504 OF 2022
ORDER:
Challenging the order dated 10.10.2010 in I.A. No. 351 of 2010 in I.A. No. 175 of 2010 in O.S. No. 74 of 2010 on the file of the Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Vikarabad, appointing an advocate-commissioner to visit and note down the physical features of the suit schedule property and to submit his report along with a plan, the present Revision is filed by the petitioners, defendants in the suit.
Heard learned counsel for the petitioners and the learned counsel for the respondent at length. Perused the material available on record.
The learned counsel for the petitioners-defendants vehemently submits that allowing the I.A. filed by the respondent-plaintiff for appointing an advocate-commissioner, pending consideration of the application in I.A. No. 175 of 2010 filed by the plaintiff for grant of temporary injunction is nothing but allowing collection of evidence at the instance of the parties to the suit, which is impermissible. The learned counsel fairly submits that there are number of decisions of the Apex Court as well as this Court both justifying appointment of advocate- commissioner and also taking contra view. Hence, he submits that the suit having been filed for perpetual injunction, the local 2 inspection that is ordered through the advocate-commissioner would be nothing but gathering evidence and if the same is allowed, it would be contrary to the settled principles and that parties to the suit have to succeed based on the evidence that may be adduced before the Court.
On the other hand, the learned counsel appearing on behalf of respondent-plaintiff submits that the trial is not yet commenced in the suit and unless the survey is conducted under the supervision of a commissioner appointed by the Court, the dispute between the parties as to the identity of the subject-matter cannot be resolved effectively and therefore, the trial Court is justified in appointing the advocate-commissioner to note down the physical features, including the boundaries of the suit schedule property.
It is the specific case of the respondent, plaintiff that the suit schedule land is an agricultural land and the revision petitioners, defendants are the neighbouring land owners and they are trying to encroach into his land and in those circumstances, he sought permanent injunction restraining the defendants. It is also his specific assertion that he is in possession and enjoyment of the property and further, his name is entered in the revenue records as such. Contesting the suit, the revision petitioners, defendants filed their written statement disputing the very title and possession of the plaintiff. It is their 3 case that the suit schedule property was their joint family property and that the co-sharer, Mallareddy, from whom the plaintiff's father stated to have purchased the suit schedule property. It was their specific case that the plaintiff has changed the boundaries in the sale deed, dated 25.10.2005 than the one mentioned in the original sale deed dated 17.12.1980.
In light of the contention of the revision petitioners, defendants as to the changing of the boundaries in the sale deed dated 25.10.2005, the plaintiff, respondent herein sought appointment of an advocate-commissioner for noting down the physical features and status of the site. The objection that is raised by the revision petitioners is that the advocate- commissioner cannot be appointed without framing the issues and further, even before the I.A. filed by him for grant of temporary injunction is decided. It is also the specific contention of the petitioners that appointment of the advocate- commissioner would result in gathering evidence and hence, the same is impermissible under law.
The argument advanced by the learned counsel for the revision petitioners is liable to be rejected, in view the facts of the present case, wherein the relief that is being claimed by the plaintiff is for permanent injunction with the specific plea that the subject land is an agricultural land, whereas the defence in 4 the written statement is to the effect that the plaintiff has changed the boundaries in the subsequent sale deed from the original sale deed. In the above factual scenario, for deciding the lis in the suit, the appointment of an advocate- commissioner would certainly be helpful as the dispute regarding the boundaries of the suit schedule property will be appreciated with the help of the report that may be filed by the advocate-commissioner.
In those circumstances, since there is no specific bar and there is no hard and fast rule that advocate-commissioner cannot be appointed before commencement of trial or before passing an order granting temporary injunction and in view of the fact that appointment of an advocate-commissioner would help in disposing both I.As. as well as the suit effectively, this Court does not find any irregularity in the order under Revision and accordingly, the Civil Revision Petition is dismissed as devoid of merit.
It is needless to mention that the observations made hereinabove shall not be construed as this Court expressing any opinion on the rights of the parties to the suit. No costs.
Consequently, the miscellaneous Applications, if any shall stand closed.
________________________ M.G. PRIYADARSINI, J 31.01.2023 tsr 5 THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI CIVIL REVISION PETITION No. 2504 OF 2022 DATE: 31-01-2023