Andhra Pradesh High Court - Amravati
Shirdi Sai Educational Society, ... vs Kundla Surendra on 1 December, 2020
Author: B.Krishna Mohan
Bench: B.Krishna Mohan
THE HONOURABLE SRI JUSTICE B.KRISHNA MOHAN
CIVIL REVISION PETITION No.3044 OF 2019
ORDER:
This Civil Revision Petition arises against the order dated 29.08.2019 in I.A.No.146 of 2016 in O.S.No.32 of 2016 on the file of I Additional District Judge, Kurnool.
2. The petitioners herein are the defendants in the suit and respondents in the I.A. before the Court below. The respondents herein are the plaintiffs in the suit and petitioners in the I.A. before the Court below.
3. The suit in O.S.No.32 of 2016 on the file of I Additional District Judge, Kurnool, is filed against the defendants for cancellation of the registered rectification deed dated 05.02.2016 (Document No.939/2016/ executed by the second defendant in favour of the first defendant-Society; consequently, to direct the defendants to vacate and deliver vacant possession of the suit schedule land to the plaintiffs by removing all those encroachments/constructions put up by them and grant of any other relief, which may be deemed fit and proper in the circumstances of the case. The suit schedule land is an agricultural land in an extent of Ac.0.86 cents in Survey No.191/A8 of B.Thandrapadu Village limits, Kurnool Mandal, Kurnool District. During pendency of the suit, before commencement of the trial, the plaintiffs filed I.A.No.146 of 2016 in O.S.No.32 of 2016, under Order 26 Rule 9 read with Section 151 C.P.C., before the I Additional District Judge, Kurnool, for appointment of an advocate commissioner to inspect the petition 2 BKM,J C.R.P.No.3044 of 2019 schedule land with the assistance of District Surveyor, Kurnool, to localize petition schedule land and note down the exact stage of constructions being carried out in the petition schedule land by submitting a report.
4. It is the case of the respondents herein, who are the petitioners and plaintiffs before the Court below, that the first petitioner therein is the absolute owner of the land to an extent of Ac.3.72 cents in Survey No.191/A8 of B.Thandrapadu Village, which was acquired under a registered gift deed dated 17.08.2009. The second petitioner therein purchased the said land for a valuable consideration under a registered sale deed dated 20.02.2001, which was gifted to the first petitioner therein on 17.08.2009. It is the case of the petitioners therein that the second respondent therein representing the first respondent- Society therein purchased the land in Survey No.191/B5 in B.Thandrapadu Village Limits where they raised buildings to locate their educational institutions, but they never owned the land in Survey No.191/A8, wherein the lands of the petitioners/plaintiffs therein are located. The petitioners therein/plaintiffs rely upon a rough sketch showing the lands in Survey Nos.191/A8 and 191/B5 with a specific averment that the second respondent therein created a rectification deed on 05.02.2016 and claiming the land and proceeded with the constructions by encroaching the petition schedule land and as such disputes arose between the parties about the location of the land. Hence, they are constrained to file the suit and the present application for appointment of an advocate commissioner.
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5. The respondents therein, who are the petitioners herein, opposed the said petition contending that they are proceeding with the constructions in their land only by relying upon the title deeds pertaining to their land in occupation. It is the specific case of the petitioners therein/plaintiffs that as their land is under encroachment, they have sought for an injunction and the same is granted by the Court below by way of a temporary injunction. When the respondents therein/defendants tried to violate the said injunction, they have also filed contempt proceedings before the Court below and the same is pending. While so, the present application is filed for appointment of an advocate commissioner for the purpose as stated above. The trial Court, after considering the submissions of both the sides, appointed the advocate commissioner to visit the suit schedule land, to localize the land with the help of the District Surveyor, Kurnool and advocate commissioner was also appointed to note down the exact stage of constructions made in the suit schedule land by preparing necessary plan with the assistance of District Surveyor, Kurnool.
6. Heard the learned counsel for the petitioners and the learned counsel for the respondents and perused the order dated 29.08.2019 passed in I.A.No.146 of 2016 in O.S.No.32 of 2016 by the I Additional District Judge, Kurnool.
7. Learned counsel for the petitioners contended that the petitioners have not encroached upon the respondents' land and any constructions made by them are only within their land. He further contended that appointment of an advocate commissioner is not warranted, in the circumstances of the case, as the trial is not yet commenced.
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8. It is the case of the respondents herein/plaintiffs/ petitioners before the Court below that the petitioners herein, who are the defendants in the suit, are encroaching upon the suit schedule land by making constructions. In view of the same, they filed a suit for the above said prayer and obtained a temporary injunction during pendency of the suit also.
9. In view of the facts and circumstances of the case and contentions of both the sides, it is to be seen that appointment of an "Advocate Commissioner" is only to visit the suit schedule land for the purpose of localizing the land with the assistance of the District Surveyor, Kurnool and note down the physical features of the suit schedule land, no prejudice would cause for either of the parties if the advocate commissioner is appointed and proceeded with the task of execution of his warrant and as such, no interference is called for to set aside the appointment of an advocate commissioner at this juncture by this Court. However, it is made clear that the advocate commissioner shall only visit the suit schedule land to localize the land with the assistance of the District Surveyor, Kurnool alone and he shall note down the physical features of the suit schedule land by drawing necessary plan with the assistance of the District Surveyor, which can be submitted before the Court below as stipulated by the orders of the Court below. It is needless to mention that if either of the parties are being aggrieved by the report of the advocate commissioner, necessary steps available under law can always be taken before the Court below for passing appropriate orders by the Court below.
10. With these observations and modification of the order dated 29.08.2019 in I.A.No.146 of 2016 in O.S.No.32 of 2016 on the file 5 BKM,J C.R.P.No.3044 of 2019 of I Additional District Judge, Kurnool, the Civil Revision Petition is disposed of. There shall be no order as to costs.
Consequently, Miscellaneous Petitions, if any, pending in this Civil Revision Petition shall stand closed.
_______________________________ JUSTICE B.KRISHNA MOHAN Date: 01.12.2020 Ivd 6 BKM,J C.R.P.No.3044 of 2019 THE HONOURABLE SRI JUSTICE B.KRISHNA MOHAN CIVIL REVISION PETITION No.3044 OF 2019 Date: 01.12.2020 Ivd