Telangana High Court
Sri Kamal Chand M. Gulecha And Another vs Prinicpal Secretary To Government ... on 13 October, 2025
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
CIVIL REVISION PETITION NO.614 OF 2021
ORDER:
This Civil Revision Petition is filed under Article 227 of the Constitution of India aggrieved by the order and decree, dated 16.03.2021, in I.A.No.128 of 2021 in I.A.No.104 of 2018 in O.S.No.60 of 2009 on the file of learned XXV Additional Chief Judge, City Civil Court, Hyderabad, wherein the application filed under Order XXVI Rule 9 read with Section 151 of C.P.C. seeking to re-entrust the warrant to Advocate Commissioner and Deputy Director of Survey and Land Records, Hyderabad District and to conduct survey after giving notice to all the respondents, was dismissed.
2. For the sake of convenience, the parties hereinafter will be referred to, as they are arrayed in the suit.
3. Brief facts of the case are that the plaintiffs have filed a suit in O.S.No.60 of 2009 for declaration of title and recovery of possession relating to schedule A and B properties, wherein defendant Nos.3 and 4 said to have encroached upon the said lands. Pending suit, the 2 NNR,J CRP_614_2021 petitioners filed I.A.No.242 of 2009 which was re-numbered as I.A.No.104 of 2018 under Order XXVI Rule 9 of C.P.C seeking appointment of Advocate Commissioner to visit the Suit Schedule Property and inspect the same for purpose of identification of land which was actually allotted to the respective parties i.e. respondent No.5-society and thereafter respondent Nos.3 and 4 with specific reference to the concerned allotment orders, panchanama and sketch plan prepared by the Government officials at the time allotment of vis-à-vis the present possession on the site by taking the help of the surveyor not below the rank of Deputy Director, Survey and Land Records.
4. The learned Judge, after hearing both the parties allowed the said application and accordingly Sri D.Chandra Sekhar Reddy, Advocate was appointed as an Advocate Commissioner and issued warrant of Commission to him with a specific direction, directing him to take the assistant of Deputy Director of Survey and Land Records and inspect and conduct survey in respect of the suit schedule properties which are mentioned as below for conducting survey:
1. The land originally allotted to R5 society 1396 acres in Sy No.403 of Shaikpet Village and Sy. NO.2/1 of Hakimpet village.3
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2. 218.80 acres withdrawn by the government with specific reference to extent in each Sy.No.403 of Shaikpet village and 102/1 of Hakimpet.
3. Petition A and B schedule properties and their extent as per documents and the extent as available on ground with specific reference to survey numbers and plot numbers.
4. To see whether 4.05 acres allotted to R3 and 2 acres allotted to R4 in any manner on ground encroached on the petition A and B schedule of properties.
5. Pursuant to the said warrant, he executed the warrant by fixing the date of execution of the commission and visited the site on 16.11.2019 in the presence of both the counsel and their respective parties i.e., plaintiffs and defendants by taking assistance of Sri M.Gnaneshwar, Deputy Inspector of Survey Department. But on the said date, the execution could not take place as the land belonging to Income Tax Department and the land belonging to Blue Cross Society were covered with bushes and trees and due to which, the Advocate Commissioner is unable to measure the said lands.
6. Once again Advocate Commissioner has fixed the date of execution of Commission on 21.10.2020 at 4:00AM to conduct survey of land in Survey No.403 of Shaikpet village and 102/1 of Hakimpet and he also issued notices on all the parties concerned and on the said date the learned counsel for the plaintiffs, learned counsel for the defendants and their respective parties and the Income 4 NNR,J CRP_614_2021 Tax Department and representative of respondent No. 5- Society, with the help of R.O.M (Record of Measurement) of Survey No.403 of Shaikpet Village, D.G.P.S (Digital Global Position System) and E.T.S. (Electronic Total Station) Machines. The commission was continued on 04.01.2020 and concluded, on the said date.
7. He also took the rough sketch of area of the land and finally basing on the report submitted by the surveyor submitted a report and as per the report and sketch plan of the Sri M.Gnaneshwar, Deputy Inspector of Survey Department, he reported that the land which was allotted to Income Tax Department to an extent of Ac.4.05 guntas during the survey, it was revealed that the area which was allotted to Income Tax Department is the same as on the ground including that the plaintiffs are claiming the area of 714.00 square meters i.e., 853.944 square yards in plot No.623 K1. He also gave a finding that the land allotted to Blue Cross Society i.e., respondent No.4- society to an extent of Ac.2.00, but on the ground it is revealed that the Blue cross society is in enjoyment of Acs.2-05 guntas i.e., 0.05 guntas excess it comes to 605 square yards. It is also further reported that there in another part of land, which is opposite to area claimed by 5 NNR,J CRP_614_2021 the plaintiffs, which is shown in yellow colour measuring 438 square meters, which comes to 523.848 square yards covered under Government land falls in T.S.No.2 but some third parties are in occupation of the said land.
8. He also further reported that basing on the work memo of learned counsel for the plaintiffs, the learned Advocate Commissioner could not measure the land allotted to the Intelligence Bureau, since they have not permitted to measure the same. So also he could not measure entire land of respondent No.5-society, as it is a huge area of Acs.1398-00 guntas in Survey No.403 of Shaikpet Village. Unless the entire land of respondent No.5-society is measured, he cannot demarcate the plot No.623 K belonging to the plaintiffs as per the sale deed and accordingly, he filed report.
9. It is stated that the plaintiffs have filed objections to the Advocate Commissioner's Report, which reads as follows:
(1) The Advocate Commissioner has failed to measure the land allotted to Jubilee Hills Cooperative House Building Society Ltd. by the Government which has caused material prejudice to the right of the Petitionerss. The Vendor of the Petitionerss are admittedly the purchasers from the Society under 6 NNR,J CRP_614_2021 regd. Sale Deed dated 8-7-1999 bearing doct.No. 2005/2001 of Plot No. 623-K admeasuring|804 sq.yards, in T.S.No.1 as originally identified in the original Record of Measurements maintained by the Dy. Director, Survey and Land Records, Hyderabad District and as was filed in L.G.C. 105/98 before the II Special Court under the Land Grabbing [Prohibition] Act 1982 at Hyderabad.
2) The Advocate Commissioner failed to take into consideration the work memo filed by the Petitionerss/Plaintiffs while executing the warrant.
3) The Advocate Commissioner has failed to explain the excess land in possession of 4th Respondent/Defendant i.e. Blue Cross Society of
Hyderabad that the same is from out of the land allotted to the 3rd Respondent/Defendant i.e. Chief Commissioner, Income-tax-I.
4) The Advocate Commissioner has stated that Blue Cross Society of Hyderabad is in possession of Ac.0-
05 gts in excess of their entitlement. However as per the measurements shown by the Surveyor, the excess area comes to Ac. 0-07.60 gts and not Ac.0.05 gts as mentioned by the Commissioner and as such the correct area being excess in possession of Blue Cross Society of Hyderabad though identified has not been mentioned.
5) The Advocate Commissioner has failed to mention the correct position on site including the persons who were found to be in possession of the yellow coloured triangular piece of land shown in the sketch annexed by the Deputy Director, Survey and Land Records. The Advocate Commissioner and the Surveyor have not addressed as to from where the said triangular piece of land emerges, which is not there in the original Record of Measurements (ROM) in respect of TS Nos. 1 and 2 and as such reference there to is against the official records 7 NNR,J CRP_614_2021 maintained by the Department. Omission on the part of the Advocate Commissioner and the Surveyor in this respect has caused material prejudice to the rights of the Petitioners as non existent portion of land is shown to be existing in the sketch now prepared.
6) The Advocate Commissioner has served the report of the Deputy Director, Survey and Land Records along with the sketch earlier to the Counsel for the Petitioners. Thereafter the Surveyor has replaced the sketch by a different sketch which is not permissible. The original sketch as served upon the counsel for petitionerss by the Advocate Commissioner is filed herewith
7) The Advocate Commissioner has failed to note down the discrepancies in the measurements shown in the sketch annexed to the report of the Dy. Director, Survey and Land Records with the actual measurements taken on ground. In the actual measurements taken on ground while executing the warrant, the southern boundary of land in possession of Blue Cross Society of Hyderabad is 791 links. However in the sketch the Surveyor has shown it as 631 links only. The Advocate Commissioner and the Deputy Director, Survey and Land Records. have intentionally not filed the actual measurements taken on site at the time of execution of warrant of commission. The advocate Commissioner and the Deputy Director, Survey and Land Records. have failed to address which is the actual extent of the land in possession of the Blue Cross Society of Hyderabad could not have been more than 750 links whereas the same is wrongly shown as 631 links though infact on site it was found to be 791 links i.e. [204+102+53+270+165] which was the measurement taken on site of the southern boundary of the land in possession of Blue Cross Society of Hyderabad 8 NNR,J CRP_614_2021
8) In the Panchanama Plan prepared for allotment of land to Income-tax Department, the northern boundary is admeasuring only 400 links whereas while identifying the land on site, the Surveyor has shown 400+ 82 links as the northern boundary by claiming that 82 links are encroached by the Plaintiff.
9) The Commissioner has failed to mention in his report that the measurements of the triangle piece of land towards North-Eastern corner have not been taken on site at any point of time while the survey was conducted as well as the reason for the said measurements were not furnished. It is un understandable as to how a measurements are mentioned in the plan which were not taken on site during execution of warrant.
10) The Commissioner has failed to mention in his report that the measurement of the southern boundary line of Subsidiary Intelligence Bureau has not been taken on site at any point of time while the survey was conducted.
11) The Commissioner has failed to mention in his report that the land in possession of Blue Cross Society of Hyderabad is not in conformity with the sketch annexed to the report.
12) The Surveyor deputed by the Dy. Director, Survey and Land Records has failed to file the sketch as per the measurements taken on ground but has copied the sketch plan from some other proceedings and filed the same before this Honourable Court which is not permissible in law.
13. The Surveyor has failed to note that there is no land available in TS No.2 on the southern side of land allotted to Blue Cross Society of Hyderabad. However the Surveyor has shown yellow lined triangle piece 9 NNR,J CRP_614_2021 admeasuring 438 sq. meters as available with ulterior motives to help others.
14. The Surveyor has failed to take into consideration the sketch plan attached to the panchanama dated 24.7.1998 as well as the sketch attached to the panchanama dated 16-11-1994 under the said Panchanamas the Government has claimed to have allotted land to Blue Cross Society which are crucial panchanamas based on which title is being claimed by the Blue Cross Society of Hyderabad. . In the said sketches the southern boundary is shown as land in TS No. 1 and not a triangle piece shown in the present sketch.
15. The Surveyor has failed to take into consideration the ROM plan i.e. Record of Measurement Plan where there is only one survey line demarcating TS No.1 and T. S.No.,2. However in the present sketch the Surveyor has shown 2 survey lines while showing the southern boundary of the land in possession of Blue Cross Society of Hyderabad. It is respectfully submitted that as can be seen from the above objections they are of a very serious nature and go to the root of the matter. It is therefore, necessary to cross examine the Advocate Commissioner as well as the Surveyor and the Deputy Director, Survey and Land Records and one Sri Ganesh who assisted the Surveyor in providing DGPS system for survey."
10. No objections to the Advocate Commissioner's report were filed by any of the respondents.
11. Subsequently, the Advocate Commissioner has been summoned and he was examined as CW1, wherein he 10 NNR,J CRP_614_2021 was also cross-examined by learned counsel for the defendants Nos.1, 2 and 4 and the plaintiffs.
12. It is also further reported by the Advocate Commissioner that he could not measure the land of Jubilee Hills Cooperative House Building Society i.e., respondent No.5 since the said land is of Acs.1398 in Survey No.403 on Shaikpet Village. Unless he measures the entire land of respondent No.5, the Advocate Commissioner cannot demarcate plot No.623K1 belonging to the plaintiffs as per the sale deed. The entire land falls in T.S.No.1. Subsequently, the said Commissioner report marked and taken in evidence and present I.A.No.128 of 2021 is filed by the petitionerss-plaintiffs contending that the present dispute is in respect of identity of land and the same cannot be resolved until and unless the enquiry by way of proper survey is conducted and as such, they prayed that the Commissioner warrant may be re-entrusted to Deputy Director, Survey and Land Records and directing him to conduct survey after notice to all parties concerned so as to identify lands stated to have been allotted to respondent No.3 under Ex.A.49. 11
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13. The prayer which is sought in I.A.No.128 of 2021 reads as follows:
"Exhibit A49 and respondent-defendant no.4 under Exhibit A42 and Exhibit A44 with specific reference to the allotment orders by the government and the plans vis-à-vis possession of the said respondents 3 and 4 found on the site and to survey the actual land originally allotted to respondent-defendant no.5 society in conformity with the Plan annexed at the time of handing over possession to Respondent-Defendant No.5 which are available with the Tahsildar, Shaikpet Mandal with reference to the original allotment orders and various layouts sanctioned from time to time as well as to note down the physical features on the site with specific reference to extent and boundaries as mentioned in the sale deeds executed in favour of the petitionerss-plaintiffs and the actual extent of land in suit schedule 'A' and 'B' properties illegally encroached upon by the respondents 3 and 4, if necessary by taking photographs and be pleased to pass such other order or orders as this Hon'ble Court deems fit and proper."
14. Respondent No.2 filed counter-affidavit denying the averments made in the petition and contended that there is no necessity for re-entrustment of commissioner warrant as survey report which was submitted in earlier instances by the respondents clearly indicates that the land in T.S.No.2, Block -A, Ward No.9 is not in the area covered by Jubilee Hills, Co-operative Housing Society as per layout. It is further stated that moreover the claim raised by the Design and Test Technologies Private Limited 12 NNR,J CRP_614_2021 represented by its director K.Satyanarayana v. The State of Government and others in respect of alleged plot No.623/2, 623/2/A, which is situated near by the suit land was also uphold in favour of the government by the Hon'ble Apex Court. The alleged plots also form part of T.S.No.2, block A, ward 9, as such it is crystal clear that the said suit land is Government land and not at all allotted to respondent No.5-society. It is further stated that the Tahsildar filed counter contending that the re-allotment is not necessary.
15. Respondent No.3 also filed counter affidavit and the gist of the counter is as follows:
"It is submitted that as seen from the Advocate Commissioner's report that the Advocate Commissioner got the land of this Respondent No.3 and that of Respondent No.4 surveyed in the presence of the petitionerss, representative from the Income Tax Department, employees of Respondent No.4 and representatives of Respondent No.5 and their respective learned counsels. It is further submitted that the Advocate Commissioner has clearly mentioned in his report that after executing the warrant of commission on taking measurements of the land of Respondent No.3 i.e. Income Tax Department and land of Respondent No.4 i.e. Blue Cross Society, he informed the learned counsels and their respective parties about the completion of execution of warrant in all respects and with their consent he closed the proceedings and obtained their signatures on the proceedings prepared at the site. Hence, it is clearly evident that the petitioners are very well aware of the survey proceedings conducted and gave their concurrence for closure of the proceedings. It is further evident that the petitioners never at 13 NNR,J CRP_614_2021 any point of time during the course of Survey objected to the manner in which the survey was conducted nor objected for conclusion of the survey proceedings and now trying to fish out the evidence with the help of the Commissioner which cannot be permitted. Hence, raising objections at this juncture on the Advocate Commissioner's report is highly untenable and tantamount to employing of dilatory tactics thereby causing huge financial loss and impediments in the progress of the infrastructure work of the RespondentNo.3".
16. The respondent No.4-Blue Cross Society, Hyderabad filed the counter denying all the averments made in the petition and contended that the filing of the present petition to resurvey the schedule property is not permissible under law. However, respondent No.4 admitted with regard to survey of the land and appointment of Advocate Commissioner and in their presence only the land was measured and they have not raised any objection at that point of time.
17. It is further stated that the property of the plaintiffs is situated in Ranga Reddy District, whereas property allotted to the petitioners is situated in Shaikpet and even if the petition is allowed they cannot measure the land of the petitioners without the help of the Ranga Reddy District Surveyor. It is further stated that the relief sought for by the petitioners cannot be done at this juncture as 14 NNR,J CRP_614_2021 they were given opportunity by the Court to the petitioners to take advantage when the Deputy Surveyor was present and when demarcating the land, now at the belated stage after cross examination of the witnesses, they came forward with a petition to re-survey the land is an afterthought and cannot be allowed at the whims and fancies of the petitioners and they prayed to dismiss the petition.
18. Having heard the learned counsel and considering the pleadings of petitioners and respondents, the learned Judge observed that admittedly there is a compound wall to the land in possession of respondent No.3 and 4, whether respondent Nos.3 and 4 are in possession of land allotted to them or not is the primary question and after it is found that the answer to the question is against the respondent No.3 and 4. The next question would be whether it leads to conclusion that the land in excess in possession of respondent No.3 and 4 is the land which is part of plots No.623K and 623/K1.
19. The learned Judge further held that it will be an impossible and impractical task to survey the entire land of Ac.1398-00 guntas which is now in occupation of hundreds of houses, numerous institutions, big hospitals, 15 NNR,J CRP_614_2021 organizations and also under occupation of several institutions like schools and allotted to other House Building Societies to whom the land was allotted after resumption from the Society. Thus, according to the respondent Nos. 1 to 4, Jubilee Hills Co-operative Housing Society was finally not allotted Ac.1398-00 of land. It is further held that even if it is taken that the land in excess in possession of respondent Nos.3 and 4 does not give rise to interference that it is part and parcel of land allotted to Jubilee Hills Housing Co-operative Society and that it forms part of plot Nos. 623K and 623K1. The learned Judge after considering the submissions made by both the parties held that in the light of these facts, not collecting the allotment orders of the land allotted to the respondent Nos. 3 and 4 and the Jubilee Hills Co-operative Society by the Advocate Commissioner at the time of survey cannot be questioned now by the plaintiffs.
20. Coming to the other objections which are raised that is the land Ac.1398 allotted to Jubilee Hills Housing Co-operative Society was not surveyed which is a fact that the Advocate Commissioner and Deputy Surveyor were examined and testified before the Court which is not possible to measure and survey the entire extent of 16 NNR,J CRP_614_2021 Ac.1398 of land allotted to Jubilee Hills Housing Cooperative Society, as there are several hundreds of houses, institutions, Hospitals etc., in the land allotted and the land was also resumed by the government and allotted to others. It is further held that as already the Advocate Commissioner has examined on oath and he stated that at the time of execution of warrant, survey authorities expressed their inability to conduct survey of entire Ac.1398 of land allotted to Jubilee Hills Housing Cooperative Society, for several reasons and he could not conduct survey. Even if this Court, re-entrust the warrant again to same Advocate Commissioner or to another Advocate Commissioner to survey and measure the entire Ac.1398-00 guntas of land, this Court would not perceive that the survey authorities would now survey the entire land of Ac.1398-00 guntas which few months earlier they stated that it is impracticable to survey. Even otherwise, it is not that the entire Ac.1398-00 now belongs to Jubilees Hills House Building Cooperative Society and there are several other allottees, who developed their own layouts also and those layouts would not be part of the jubilee Hills Society layouts. Hence, the learned Judge held that there are no merits in the petition and dismissed the same. 17
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21. Being aggrieved by the same, the present Revision Petition is filed contending that as the Advocate Commissioner is totally failed to carry out the specific directions given for executing the warrant issued. It is contended that the learned Judge without considering the core question involved in the suit i.e., identity of the property, the learned Judge ought to have seen that the plaintiffs filed I.A.No.242 of 2009 at the time of filing of the suit itself in the year 2009. It is evident that the said application was taken up by the trial Court after completion of the plaintiffs' evidence was concluded.
22. It is further averred in the grounds that the very order under review is per se erroneous and the same deserves to be set aside; and that the learned Judge in casual and cursory manner in which has proceeded to dispose of the application is apparent on the face of record as the trial Court in its order in paras 4.1, 4.2 and 4.3 did not even refer to the specific admissions in the counter affidavit filed by the Income tax Department in which they took a clear unequivocal stand that as against the original allotment of land admeasuring Ac.4-05 gts which they claim to be in possession of, their entitlement now is only Ac.3-16 gts. i.e., in total contradiction of their written 18 NNR,J CRP_614_2021 statement as well as evidence lead by them through DW4 on record. It is further averred that the learned Judge did not consider that the Income Tax department all along has been claiming to be in possession of land admeasuring Ac.4-05 gts allotted to them and now suddenly after the entire evidence came on record, claim entitlement for an area admeasuring Ac.3-16 gts. Further, the order under revision is perverse as the core question is the identity of the property and unless the respective portions of the lands allotted to the concerned three entities are identified on the ground, that there is no other way to bring quietus to this long standing dispute.
23. Refusal on the part of the trial Court to address the core question involved is an unfortune failure on the part of trial Court to exercise the jurisdiction vested on the Court, while casually dismissing the application filed on conjectures and surmises. While taking into consideration the plaintiff had done everything in their control but for the collusion between the officials of defendant Nos.3 and 4 with the concerned officials of the Government and the Advocate Commissioner which is apparent on the face of record. It was ensured by them that the true situation does not come to the notice of the Court. 19
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24. It is also stated that the trial Court lost his sight and the fact that failure on the part of the Advocate Commissioner to follow the exact directions as given in the warrant is a clear circumstance for re-entrustment of the warrant, especially in a suit of this nature where identity of the property is the core question involved. It is also further averred that it was not necessary to survey the entire layout of land of the Jubilee Hills Cooperative Housing society if that was not possible as claimed. Admittedly, the adjacent plots on and towards the South are in the layout of the society and from any one identified point on and towards South the suit plots could not been measured up to the Suit Schedule Property, and as such the said reason given by the trial Court is per se erroneous and in fact submissions were made during the hearing of the matter which were not taken into consideration and prayed to allow the revision and set aside the order passed by the learned Judge.
25. Heard Sri Sunil B.Ganu, learned Senior Counsel appearing for the petitionerss and Sri V.S.Raju, learned Additional Solicitor General of India representing Sri A.Ramakrishna Reddy, learned Senior Standing Counsel for respondent No.3-Chief Commissioner of 20 NNR,J CRP_614_2021 Income Tax Department and Sri C.V.R. Rudra Prasad, learned counsel for respondent No.5-Society.
26. None appears for respondent Nos.1, 2, 4 and 6 and no submissions were made on their behalf. Though initially learned Assistant Government Pleader appeared in the matter, thereafter, there is no representation. As such, this Court treated that there are no submissions on behalf of respondent Nos.1, 2, 4 and 6.
27. Now the points that arise for consideration in this petition are :
1. Whether there is any necessity to appoint an Advocate Commissioner for re-allotment of the warrant for re-
surveying of the subject lands as per the Commissioner warrant issued by the learned Judge?
2. Whether the learned Judge has committed any error and needs any interference in the present petition?
3. Whether the impugned order is liable to be set aside?
28. POINT NO.1:
Heard learned Senior Counsel appearing for the petitioners, learned Additional Solicitor General representing Sri A.Ramakrishna Reddy, learned Senior Counsel for respondent No.3 and learned counsel for respondent No.5. All counsel have touched upon and have 21 NNR,J CRP_614_2021 gone into the merits of the case in detail with facts and contentions of the respective parties. It is pertinent to mention here that the order passed in I.A.No.104 of 2018 was filed for appointment of an Advocate Commissioner only for the purpose of inspection and conducting survey.
The said order was not questioned and it has become final.
Admittedly, appointment of Advocate Commissioner is only for the purpose of conducting inspection and survey and not for collection of evidence. It is not in dispute that the petitioners and respondents have their own independent title over their respective lands.
29. Learned Senior Counsel appearing for the petitioners has argued and contended that the learned Advocate Commissioner did not consider the work memos submitted by the petitioners as the very warrant which was entrusted upon. He also argued and contended that the report which is submitted by the learned Advocate Commissioner does not throw light as to the core issue which is before this Court and he also pointed out that there was no adverse title by any of the parties. He also pointed out that as it is the specific case of the Income Tax Department that initially Ac.4-05 gts was allotted to them and subsequently the land to an extent of Ac.0-29 guntas 22 NNR,J CRP_614_2021 was resumed by the Government. Learned Senior Counsel also pointed out that the learned Advocate Commissioner did not identify the land of Ac.0-29 guntas which was resumed by the Government. He also contended that the Income tax Department has not filed any objections to the Commissioner's report and also pointed out that the contention of the Income Tax Department that Ac.0.29 guntas of land was resumed by the Government and Ac.0.05 guntas which was in excess possession of the Blue Cross Society which shows that they are in excess possession of 754 Sq.yards of land.
30. He also further argued and contended that the Commissioner's report is not in conformity with Exs.A.1 and A.2 and the learned Advocate Commissioner did not submit the rough sketch, though it is stated that the Deputy Surveyor, Land Records has prepared the rough sketch and the same was not part of the record/report. He also argued that the objections made to the Advocate Commissioner report are not considered and there was no objection raised as to why re-entrustment is not to be given. He also argued that so as to give quietus to the entire issue because the identity of the property, being in guntas, hence, re-entrustment would throw more light on 23 NNR,J CRP_614_2021 the factual aspects on the ground. It is argued and contended that the Commissioner did not execute the warrant as directed by this Court and having admitted that he has not collected the allotment orders though it was directed to verify the same basing on the allotment orders. The learned counsel has raised various aspects which are illustrated during course of examination as CW1. He also argued and contended that the trial Court without taking into consideration the issue involved dismissed the application erroneously and prayed this Court to allow the Civil Revision Petition.
31. The learned Additional Solicitor General of India argued and supported the report/contentions of the Advocate Commissioner and contended that measurement of huge area of Ac.1328.00 guntas is not possible and he also further pointed out that as per the advice of the plaintiffs, sold the property of specific area and also pointed out that possession was already delivered to them. He also vehemently argued and contended that once the said land was sold obviously the said land would not have exit on the ground. It is also pointed out that as per their own statement of the plaintiffs the entire property belonging to them was within and along compound wall erected and 24 NNR,J CRP_614_2021 when there is a compound and it is secured, the question of encroachment of respondent No.3 does not arise. He also pointed out that the land which is in occupation of the Income Tax Department is in the T.S.No.2 whereas the land which was allotted to the Jubilee Hills Co-operative Housing Society is in T.S.No.1 and the plaintiffs without questioning the Jubilee Hills Co-operative Housing Society might have allotted the land which is not belonging to their society and without questioning them the plaintiffs are making allegations against the Income Tax Department that they have encroached upon the said land.
32. It is further argued and contended that it is not an open land and as there are structures made even as per the plaintiffs contentions. He also pointed out that North- West of the property i.e. the plaintiffs which is claimed and the land which is resumed by the Government i.e., Ac.0.29 guntas is on the Southern Side and there is no compound wall for both said lands. He also argued that the dispute it is only between the plaintiffs and the Government.
33. The learned Senior Counsel appearing for the Income Tax Department also submitted written submissions on behalf of respondent No.3 and contended 25 NNR,J CRP_614_2021 that the Civil Revision Petition is not maintainable as a matter of law and it is the learned Additional Solicitor General has submitted that the scope of revision under Section 115 of CPC is very limited and that unless there are any jurisdiction errors or material irregularities in the orders passed by the trial Court only, the revisional Court can interfere with the said orders. In support of his contentions he also relied on the judgments of Hon'ble Supreme Court in Keshardeo Chamria v. Radha Kissen Chamria 1; Managing Director (Mig) Hindustan Aeronautics Ltd. v Ajit Prasad Tarway 2; Pandurang Dhondi Chougule v. Maruti hari Jadhav 3; D.L.F.Housing & Construction Co. (P) Ltd. v. Sarup Singh 4; Tek Singh v. Shashi Verma5; Madanlal v. Shyamlal 6; Praveen Kumar v. Suresh Chand 7; Satyanarayan Laxminarayan Hegde v. Millikarjun bhavanappa Tirumale 8; Vishesh kumar v. Shanti Prasad 9;
1 (1952) 2 SCC 329 2 (1972) 3 SCC 195 3 (1965) SCC OnLine SC 83 4 (1969) 2 SCC 807 5 (2019) 16 SCC 678 6 (2002) 1 SCC 535 7 (2000) 8 SCC 491 8 (1959) SCC OnLine SC 10 9 (1980) 2 SCC 378 26 NNR,J CRP_614_2021
34. The current disputes which revolve around determination of land encroachment and title involvement and it is only to adjudicate full trial on the merits. He also further argued and contended that in view of the report of the Advocate Commissioner he submits that there is no practical feasibility of the resurvey has to be looked into and he has specifically stated that comprehensive resurvey of such vast area is not useful to resolve the petitioners claim and it would be abuse of Court process. He also further argued and contended that there is no factual basis for any encroachment and in fact there is no encroachment established by the report of the Advocate Commissioner and a finding must be accepted by the Court. He also further contended that the Commissioner report should not unequivocally administered that as the Income Tax Department has not encroached upon any part of the petitioners land. He also argued and contended that the Government resumed the land and subsequently allotted to the Income Tax Department is a separate Administrative Act i.e., entirely independent and irrelevant to the current dispute. The point is that since there has been no encroachment, the alleged illegality concerning the encroachment of Government land by the Income Tax 27 NNR,J CRP_614_2021 Department does not arise. It was further argued that the survey must be conducted in a time-bound manner and follow a logical progression. During the first survey, the Advocate Commissioner's report preliminarily validated the Income Tax Department's authority and indicated that the cost imposed on the petitioners was unwarranted. The Advocate Commissioner contended that the dispute should be resolved between the petitioners and the Jubilee Hills Cooperative Housing Society. Since the claim of encroachment was actually addressed in the Advocate Commissioner's report, there is a legal basis to implead the ongoing construction. Therefore, the department should be permitted to continue construction activities on the undisputed portion of the land. As the construction area in question is only slightly more than 110 square yards, any interference with construction would be insignificant and cause no prejudice to the department.
35. The learned Additional Solicitor General has further argued and pointed out that as per the plain averments made above, the petitioners own two plots i.e., Plot Nos. 623/K and 623/K1. He has purchased these two plots supported by registered sale deeds, with extents of 904 and 900 square yards respectively, corresponding to 28 NNR,J CRP_614_2021 premises bearing No. 8-2-293/A/623-K and 8-2- 293/A/623-K1. He further argued that since the petitioners are in possession of 1,130 square yards allotted by the Jubilee Hills Cooperative Housing Society, the petitioners have not disclosed to this Court the exact area in their possession. The purpose of the survey appears to be misleading. The Commissioner's report has categorically stated that the Income Tax Department is in possession of Acs.4.05 guntas before resumption of Ac.0.29 guntas. The land resumed by the government and occupied by the Income Tax Department is on the southern portion, which also pertains to T.S.No.2, as pointed out by the Advocate Commissioner.
36. The learned Additional Solicitor General has also brought to the notice of this Court that the report and sketch plan prepared by the Deputy Director of Survey and Land Records. The report states that the land allotted to the Income Tax Department measures Acs.4.05 acres. However, during the survey, it was revealed that the area actually allotted on the ground, including the petitioners' claimed area of 714 sq. meters (i.e., 853.944 sq. yards) in Plot No. 623K1, was different. He further pointed out and contended that since the Commissioner's warrant is 29 NNR,J CRP_614_2021 directed against the petitioners, the Commission should reveal the exact facts. He argued that the scope of revision is very limited and that issues of jurisdiction as well as factual disputes regarding the land can only be properly addressed after a full-fledged trial. He also contended that although this revision petition is filed under Article 227 of the Constitution of India, it cannot be entertained unless there is a clear error on the face of the record in the order passed by the learned XXV Additional Chief Judge, City Civil Court, Hyderabad.
37. In view of the commissioner says that he cannot survey huge area of 1300 acres of the Jubilee hills Cooperative housing society and the said survey which is not feasible that the same cannot be directed to be done and it is contended that the encroachment as per the earlier report and the Income Tax Department is not in possession which is over and above 4 acres allotted to it and in respect of 0.29 guntas resumed by the government from the Income Tax department. As the commissioner does not support his case, as such the petitioners claiming for resurvey cannot be permitted. This is only when the Court feels it undisputed and the survey has to be ordered. The survey carried out earlier cannot be disputed and the 30 NNR,J CRP_614_2021 dispute between the plaintiff and jubilee Hills Cooperative housing Society which cannot be transferred to the Income Tax Department and he also pointed out that as per Para 4 it is already says that the petitioners have already constructed as such the question of encroaching his property does not arise.
38. The learned Additional Solicitor General of India has relied upon the Judgment of the Hon'ble Supreme Court in City Municipal Council Bhalki v. Gurappa (dead) by Legal Representatives and another 10. The said judgment is in respect of dismissal of suit for non joinder of parties by giving liberty to the plaintiff therein to file fresh suit. In the present case it is in respect of whether the suit was barred by res judicata. As the said judgment is distinguishable for the reason that the factual aspects in the present case and the case which is cited by the learned Additional Solicitor General are distinguishable and as they are not the same. Further in respect of the power of revision of High Court under Section 115 of C.P.C., who has relied upon the Judgment in Keshardeo Chamria v. Radha Kissen Chamria and other 11 which is 10 (2016) 2 Supreme Court Cases 200 11 1952 (2) SCC 329 31 NNR,J CRP_614_2021 in respect of restoration of execution case after dismisssal for default, and whether application under Section 47 of C.P.C. in the said case or whether the order passed would be appealable or non-appealable order which is the question arises in the said judgments, as such the judgments which are filed before this court also distinguishable on the fact and the same would not be applicable in the present case. Further the judgment which is cited in 1971 (2) SCC (196).
39. In the said judgment at Para 20 and 22 dealt with regarding the scope of 115 CPC and the extent where the Court can interfere in a case under Section 115 in the said Judgment the Hon'ble Supreme Court vide discussing the decisions cited in Para 23 and 26 19722(3) SCC Para (5), 1965 SCC Online Page 83 and 1963 SCC 908 which deals with Revision power of High Court and scope of power under clause A, B and C of section 115 of CPC and also regarding the limit of original power of the High Court Para 5, 29 page of 1963 SCC 813 and Para 6 of 1963 SCC, at 2002(1) SCC 535 Para 5, 2008 SCC 491. It cannot be said that orders passed by the trial court can be interfered with under Section 115 CPC and cannot be said that the trial court is acted in exercise of jurisdiction in rejection 32 NNR,J CRP_614_2021 application filed by the appellant and that the order, if allowed there would be failure of justice and that there is a material regularization in exercise of jurisdiction which did not cover the errors of fact or law. 1959 SCC online, 1982 SCC 378 which deals with the scope of revision petition under section 115 and as to whether the revision lies to the high court under section 115 against the revision order made by the District Court under Section 115 and wherein it is contended that revision petitioners under section 115 is subject and distinct proceedings from a petition under Article 227 of the Constitution of India.
40. Learned counsel for the petitioners has also submitted the synopsis reiterating the argument which are already submitted by the learned counsel and contended and argued that the learned Advocate Commissioner had not collected the relevant Allotment Orders and plans or various layouts sanctioned available on the court record and he did not call for the said record from the defendants Nos.1 to 5 and the plaintiff. He also contended that DW-4, who is official of Income Tax Department in Paragraph No.10 that survey was conducted and he found that the land to an extent of Ac.4.05 guntas was allotted to Income Tax Department. But, in fact there is no excess land 33 NNR,J CRP_614_2021 available in possession of the Department. In cross- examination by the counsel for the plaintiffs, he stated that as on today the Department is in possession of more than Acs.3.16 guntas their Department is in possession of Ac.4.05 guntas. He further stated that there is record in their department in respect of construction of compound wall for land allotted to them. He does not know when the compound wall was constructed. The compound wall of Blue Cross Society is on the north-western boundary. He further added that there is compound wall of Blue cross Society on the north of their land and there is no compound wall on the other sides. Taking all these facts into consideration which show that the Income Tax Department is in possession of Ac.3.16 guntas, but as per the report of the Advocate Commissioner they are in possession of Ac.4.05 guntas and also the fact that the Commissioner did not execute the warrant as directed by the Hon'ble Court, having admitted that he has not collected Allotment orders and as such the present application I.A.No.128 of 2021 was filed seeking re- entrustment of the warrant to the Deputy Director of Survey and Land Records for conducting survey in the Counter Affidavit filed by the Respondent No3 - Income Tax 34 NNR,J CRP_614_2021 Department, they have mentioned that they have resumed the land to the Ac. 3.16 guntas out of the totally allotted land of Ac.4.05 guntas vide Panchanama dated 22.07.2016.
41. Learned counsel for respondent No.5 has argued and contended that the learned Advocate Commissioner ought to have taken steps to measure the lands of the petitioners/plaintiffs and respondent Nos.3 and 4. Admittedly, the said layout of Jubilee Hills Cooperative Housing Society is a vast area of 1380 acres and that the learned Advocate Commissioner ought to have taken allotment order of lands of respondent Nos.3 and 4 and measured the lands on the ground and that there is no necessity for re-entrustment of warrant.
FINDINGS:
42. Having heard the contention and rival contentions of the petitioners the scope of the CRP before this Court is very limited and very application filed by the petitioners is also being a limited, to issue which is in respect of whether the Court can re-allot the warrant to the advocate commissioner directing the advocate commissioner to resurvey the said premises and the 35 NNR,J CRP_614_2021 answer is that whether any error is committed by the learned judge to interfere by this Court under the said revision. Though this revision is filed under Article 227 of the Constitution of India and the contention of the petitioners is that the same was filed under section 115 of the C.P.C as though the contention of learned Additional Solicitor General is that the revisional jurisdiction of the Court is only to see whether any error occurred as to in the order then only this court can interfere in the said order. In the present case admittedly very appointment of Advocate Commissioner and allowing application for appointment of Advocate Commissioner was not assailed and it has become final and the only aspect which is left over is whether the Commissioner has executed his warrant as directed by the trial court.
43. As per the trial court the learned Advocate Commissioner was directed to take the assistance of the Deputy Director of Survey and land Records and was directed to determine the land originally allotted to the respondent No.5 i.e 1398 acres in Survey No. 493, Shaikpet village. No doubt, it is an admitted fact that the said land could not be survey by the learned Advocate Commissioner for the reason, that it was vast land of area of 1398 acres 36 NNR,J CRP_614_2021 which is humanly not possible, but so as to ascertain the actual allotment of the land to the Jubilee Hills Cooperative Housing Society, the Commissioner could not be able to establish before the Court that whether the commissioner has verified the allotment plan and also whether he has taken assistance of the material papers such as lay out plan and the boundaries in respect of the said 1398 acres merely on the ground that there are huge buildings and shops established and other structures have been cropped up as such it is not possible for him to proceed further.
44. But considering the report, only on the ground that since the land is acres of 1398 area unless he measures the entire land of respondent No.5, he cannot demarcate plot No.626 K belonging to the petitioners as per the sale deed and the said entire land of respondent No.5 falls in TS No.1 and it is vast area and it is not possible to measure the land of the respondent No. 5. But the reasons which is cited appears to be not correct for the reason that the advocate commissioner has not placed any such evidence to show that what are the steps he has taken to collect the allotment letter, layout plans and the documents from the Jubilee Hills Cooperative Housing Society and for taking assistance of the same what steps he has taken are 37 NNR,J CRP_614_2021 not been placed. Considering the circumstances stated that the learned Advocate Commissioner and the Deputy Director of Survey and lands would have thought for alternate remedy by seeking the entire area of 1380 acres and the boundaries there in respect of the same. Further, it is contended that as per the findings of the learned Commissioner as it is specifically stated that as per the report and sketch plan of Deputy Inspector of Land, the Blue Cross Society was allotted 2 acres but on the ground the Blue Cross Society is in enjoyment of 2.5 guntas that is 0.05 guntas excess. Further, it is the finding of the Advocate Commissioner that the Blue Cross Society is enjoying 0.05 guntas were excess which come to 605 sq.yards and it is contended that there is another part of land which is opposite to the area which is claimed by the petitioners which is an extent of 438 sq.mtrs which would come to 523 sq.yards which is the government land.
45. It is pertinent to mention that admittedly the said lands were allotted to all the parties by the government, 1398 acres were allotted to the Jubilee Hills Cooperative Housing Society and 2 acres to the Blue Cross Society and 4.05 acres to the Income Tax department. On the perusal of the said representation, except stating that 38 NNR,J CRP_614_2021 the learned Commissioner/Deputy Director did not sought for any allotment letter and also layout plan of the Jubilee Hills Cooperative Society to know about the actual extent with that of the boundaries and also the sale deeds of the plaintiffs. Though the contention of the petitioners is that the advocate Commissioner did not conduct the survey as per the warrant and did not verify, identify or localize or demarcate the plot pertaining to plaintiff though as he was asked by the Court.
46. Considering the very prayer of the plaintiff was that to conduct the survey and to identify the land stated to have been allotted to respondent/defendant No.3, respondent No.4 and with a specific reference to allotment order by the government and the plans which are in possession of the said respondent No. 3 and 4 found on the site and to survey the land originally allotted to the respondent No.5 with reference to original allotment orders, various layouts sanctioned from time to time as well as to note down physical features, with a special reference to the extent and the boundaries mentioned by the sale deeds executed though there was specific request and direction to do the said acts by the commissioner 39 NNR,J CRP_614_2021
47. But on the face of the report except identifying the land basing on the identification by the parties and measuring the said land nothing has been done as per the order passed by the learned Judge in the Commissioner Warrant. Besides that it is pertinent to mention that the said allotments were made by the Government, the Government is also bound to verify and place the material before the Advocate Commissioner as to actual allotment made and it is also the duty of the Government to see that the said lands which are allotted and possession has been delivered to them and out of the arguments of the parties and pleadings, nowhere the role of the Government is being played and there is no answer as to where the resumed land to an extent of Ac.0.29 guntas and the place where the said Ac.0.29 guntas was resumed and who is in possession of the same has not been verified and the boundaries of the same and so also the excess land which is said to be under occupation of Blue Cross Society i.e., Ac.0.25 guntas. The Government has not placed material before the Advocate Commissioner as to who is in possession of the said Additional Ac.0.25 guntas of land and the location and identification of the said land and boundaries of the land, which is in excess of the land allotted to the Blue Cross 40 NNR,J CRP_614_2021 Society. So also the learned Advocate Commissioner ought to have stated in his report with physical features.
48. Though Learned Additional Solicitor General appearing for the Income Tax Department specifically contended that they are only concerned with the land which is allotted to them i.e., Ac.4.05 guntas - 0.29 guntas. The said land which is in excess of more than Ac.2-00 has not been identified by the Advocate Commissioner and so also Ac.0.29 guntas is also not been identified by the Advocate Commissioner. Though it is vehemently argued and opposed the re-entrustment of the warrant.
49. But this Court is of the opinion that the entire dispute among the parties is only in respect of identity of the property. Unless and until the property is identified, the question of bringing the quietus to the litigation would not happen and the entire litigation would not come to a logical end. Until and unless the said lands with the area is ascertained as to who is in occupation of which land and how much the extent, the entire litigation would not come to an end that too a logical end. The exercise of appointment of Advocate Commissioner and inspection of the same was already been concluded and the very purpose 41 NNR,J CRP_614_2021 of appointment of Advocate Commissioner come to an end and the purpose would be served until, unless the report or proceedings and the Advocate Commissioner would assist the Court for proper adjudication of the lis before the Court. In the present case as it is seen and also contended by the learned counsel for the plaintiff that the very purpose of appointment of Advocate Commissioner has not been served for the reason and specifically that on the ground that the area which is allotted to the Jubilee Hills Co-operative Housing Society being a vast area and that is not possible to survey the said land and on the ground the Advocate Commissioner could not be able to complete the entire process of survey and the very purpose of appointment of Commissioner has been defeated
50. As the learned Advocate Commissioner though could not be able to measure the said land due to vastness, the survey or identification of the said land can be done by the Advocate Commissioner with the help of Survey Department. It is the responsibility of the Director of Survey and Land Records and the Government to see that the said lands are properly identified and that the actual extent allotted with proper boundaries, proper sketch so as to see that there cannot be any dispute among the parties. 42
NNR,J CRP_614_2021 It is the specific allegation that defendant Nos. 3 and 4 have encroached upon property of the plaintiff. It is also contended by both the parties that according to respondent No.3, the petitioners have already constructed a compound wall to the extent of the land which is sold or which is acquired by them by way of title deeds. In such case, the learned Advocate Commissioner ought to have mentioned about the same which he did not do so along with the boundaries of the said land. When there is a specific identification of the land with the boundary wall, it is also the case of the respondent No.3 i.e., Income Tax Department that they are in possession of Ac.3.9 guntas only and not Acs.4-05 guntas. But the learned Advocate Commissioner's report says that they are in possession of Acs.4.05 guntas.
51. For the reasons stated above, the issue remained answered in favour of the revision petitioners and against the respondents.
RESULT
52. In the result, the Civil Revision Petition is allowed and the order, dated 16.03.2021, passed in I.A. 128 of 2021 in I.A.No.104 of 2018 in O.S. 60 of 2009 on the 43 NNR,J CRP_614_2021 file of learned XXV Additional Chief Judge, City Civil Court, Hyderabad, is hereby set aside and the said I.A. No.128 of 2021 is allowed with the following directions:
(i) The learned Chief Judge City Civil Court, Hyderabad, is directed to re-entrust the said warrant to the same learned Advocate Commissioner or any Senior Advocate;
(ii) on such re-entrustment, the Advocate Commissioner shall inspect the suit schedule properties as directed vide warrant dated 16.08.2018 pertaining to inspection of the plaintiffs-petitioners, defendants Nos.3, 4 and 5- respondent No.3, 4 and 5 land tally the allotment proceedings and plans from the respondents.
(iii) Identify the said properties of the respondents with the help of the Deputy Director, Survey and Land Records, Hyderabad and to conduct resurvey of the entire lands which are in possession of the petitioner/plaintiffs and respondent Nos. 3 and 4/defendant Nos.3 and 4 and shall note down the physical features of the said land including the compound wall, if any, and also the extent of the land and to note down the boundaries of the respective properties to the extent of possession of respective parties and also identify the land which is resumed by the Government from respondent No.3 and land which is in excessive possession of the respondent No.4 as against the allotted land and demarcate them, measure and note down the 44 NNR,J CRP_614_2021 physical features with boundaries comparing with that of the allotted order and material documents of the same.
(iv) Further, respondent Nos. 1 and 2 are directed to assist the Advocate Commissioner and the Deputy Director, Survey and Land Records who shall provide all necessary assistance to the learned Advocate Commissioner. In respect of the inspection of the land of respondent No.5. He shall submit a detailed survey report taking into consideration of report, which was submitted by Sri Madhusudhan Rao, the One man Commission appointed vide G.O.Ms.No.604, M.A. Department, dated 10.11.1988 who has submitted its report vide Rc.No.9296 B.O.V.C. by HUDA/90, dated 20.01.1991 to the Government as referred by respondent No.2 in their counter filed by Tahsildar as the said report may throw some light in respect of occupation of entire land which is said to be in occupation of respondent No.5-
society.
(v) Further, in respect of survey of land pertaining to respondent No.5 i.e., Jubilees Hills Cooperative Housing Society, if One Man Commission report of the survey done during the said period if does not serve the purpose, the Advocate Commissioner, the petitioners and respondents shall make an endeavour to see that an alternate method of survey may be by way of Google map survey or any other mode by using latest technology and also may be by way of super impose of plans, for which respondent Nos.1 and 2 and the Director of Survey and 45 NNR,J CRP_614_2021 Land Records shall provide assistance to bring quietus to the litigation.
(vi) The Advocate Commissioner shall file consolidated report along with the report of One Man Commission along with fresh inspection report of the Director, Survey and Land Records within one month from the date of receipt of Advocate Commissioner Warrant issued by the learned Chief Judge, City Civil Court, Hyderabad.
(vii) It is made clear that all the parties shall submit their work memos along with relevant maps and plans of their respective properties respectively and respondent Nos.1 and 2 shall also submit all the relevant allotment proceedings/plans, Tonch plan and village map layouts of respondent No.5 society and any other documents which assist the learned Advocate Commissioner to execute the Commissioner Warrant and provide all sorts of assistance to the Advocate Commissioner while doing the execution of commissioner warrant till filing of the report. The Advocate Commissioner fee is fixed at Rs.25,000/- payable by the petitioners directly to him. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Civil Revision Petition shall stand closed.
________________________________________ JUSTICE NARSING RAO NANDIKONDA Date:13.10.2025 Note:
Issue CC.in one week.
(B/o) ADT/YVL