Andhra HC (Pre-Telangana)
Arredla Ram Reddy S/O. Malla Reddy, ... vs Arredla Alivelamma W/O. Buchi Reddy on 8 July, 2004
Equivalent citations: 2004(5)ALD388
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. This C.R.P. is filed against the order dated 7-5-2004 passed by the learned Junior Civil Judge, Deverkonda, in I.A. No. 38 of 2004 in O.S. No. 18 of 2004.
2. The respondent filed O.S. No. 18 of 2004 against the petitioners for the relief of permanent injunction in respect of Ac.2.30 guntas of land in Sy. No. 240/A of Mosangi Village, Gurrampod Mandal, Nalgonda District. She also filed I.A. No. 38 of 2004 under Order 26 Rule 9 C.P.C., for appointment of an Advocate Commissioner, to note down the physical features. Through the order under revision, the trial Court appointed a Commissioner.
3. Learned counsel for the petitioners submits that, in a suit for permanent injunction, the only question that falls for consideration is, whether the plaintiff was in possession of the suit schedule property, as on the date of the filing of the suit, and whether she is entitled for permanent injunction; and the question of noting down the physical features in such matters does not arise. He contends that the purpose of filing the application was only to gather evidence, and that the same is not permissible in law.
4. Learned counsel for the respondent, on the other hand, submits that the necessity to file the I.A., arose on account of the fact that, having suffered an order of temporary injunction in O.S. No. 18 of 2004, the petitioners filed O.S. No. 22 of 2004, in respect of part of the suit schedule property, admeasuring 25 guntas. He further contends that taking advantage of the same, they started cutting the mosamb trees on the suit land, and that the I.A. was filed to present the actual state of affairs before the trial Court.
5. Admittedly O.S. No. 18 of 2004 is filed for the relief of permanent injunction. The respondent has to establish that she is in lawful possession of the suit schedule property as on the date of the filing of the suit, and that her possession cannot be interfered with by the petitione Rs. In recording a finding as to whether the respondent was in possession of the suit schedule property, the trial Court has to consider the oral and documentary evidence, touching on that aspect. The nature of the property becomes hardly relevant or significant, in the context of the relief of perpetual injunction.
6. It is true that appointment of Commissioners under Order 26 C.P.C., is not confined to any particular circumstances. Depending on the necessity in a suit, Commissioners can be appointed, even to note down the physical features. This, however would depend on the nature of relief claimed in the suit. When the physical features of the suit schedule property are of hardly of any relevance, in a suit for permanent injunction, the necessity to appoint a Commissioner does not arise. The resultant report is prone to be used as a material, to support the plea of possession etc. Such a course of action is impermissible in law.
7. It is contended on behalf of the respondent that the necessity arose on account of the fact that suppressing the existence of an order of temporary injunction, the petitioners filed another suit and obtained temporary injunction, in respect of part of the suit schedule property. If that be so, the only course of action open to the respondent is to file an appropriate application in O.S. No. 22 of 2004, and seek modification of the order of the temporary injunction. Since both the suits related to the same subject matter of the property, between the same parties, pending in the same Court, there should not be any difficulty.
8. Learned counsel for the respondent submits that the petitioners have also filed I.A. No. 85 of 2004 in O.S. No. 22 of 2004 for similar relief, namely, appointment of Commissioner. It goes without saying that whatever is observed in this order, as regards the application for appointment of Commissioner, would hold good for that I.A. also.
9. Accordingly the C.R.P. is allowed, and the order under revision is set aside, leaving it open to the parties to work out their remedies, in ensuring that there is no overlapping of orders of temporary injunction, in both the suits. The trial Court shall club both the suits and dispose of the same as early as possible. No costs.