Telangana High Court
Smt. Chemarala Jayaprada vs Sri. Sakkerla Krishnaiah on 23 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITON No.1489 of 2022
ORDER:
This Civil Revision Petition is filed against the order dated 06.05.2022, passed by the Court of Principal Junior Civil Judge, Kollapur in I.A.No.404 of 2022 in O.S.No.250 of 2021.
2. The petitioner is the plaintiff and the respondent is the defendant in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.
3. By the impugned order, dated 06.05.2022, the trial Court allowed the application filed by the defendant seeking to appoint Advocate-Commissioner to carry out local investigation and note down the physical features of the suit schedule property.
4. The suit is filed for perpetual injunction in respect of the suit schedule property restraining the defendants from interfering with the suit schedule property. The case of the plaintiff is that the suit schedule property is a vacant land, whereas the contention of the defendant is that there exist structures such as house, bathroom and other constructions in the suit schedule property. During the pendency of the suit, the defendant filed the present application under Order XXVI Rule 9 of the Civil Procedure Code seeking 2 LNA, J CRP.No.1489 of 2022 appointment of Advocate-Commissioner to note down the physical features of the suit schedule property. The plaintiff resisted the said application stating that the title over the suit schedule property has to be established by way of placing relevant revenue records and title documents and a Commissioner cannot be appointed in a casual manner in a suit for perpetual injunction.
5. The trial Court, on due consideration of the contentions raised by both the parties and the material available on record, appointed Advocate-Commissioner to conduct local investigation and note down the physical features of the suit schedule property and to submit a plan.
5.1. The trial Court at para 6 of the impugned order duly recorded its findings which are extracted hereunder:-
"The question as to whether the suit land is vacant or contains constructions such as buildings is extremely relevant for the question of possession. This is because if the land is vacant, then the person in title is also deemed to be in the de jure possession of the land. However, where there are any constructions, the question has to be answered and determined in a different manner. Hence, here we have disputed question of fact, whose, determination is extremely relevant in order to properly decide the questions that 3 LNA, J CRP.No.1489 of 2022 would arise in the suit and the best way to answer this disputed question of fact is to observe the suit property which the Court cannot in the natural manner. As such, the appointment of a Commissioner to act as the eyes of the Court is the most natural option available before the Court."
6. Sri P.Venkanna, learned counsel for the plaintiff, contended that the trial Court passed the impugned order in a mechanical manner without taking into consideration the fact that the plaintiff filed a complaint before the Police concerned against the defendant when the latter illegally entered into the suit schedule property and the same was registered for the offences punishable under Sections 427 and 447 IPC. He further contended that impugned order is contrary to the settled principles of law and procedure, and prayed to allow this Revision Petition.
7. Per contra, Dr. N.Ravi Kumar, learned counsel for the defendant, would submit that the trial Court has rightly allowed the application and appointed Advocate-Commissioner for noting down the physical features of the suit schedule property and no prejudice will cause to the plaintiff and further, no grounds are made out to interfere with the impugned order. 4
LNA, J CRP.No.1489 of 2022
8. The suit is filed seeking the relief of perpetual injunction in respect of the suit schedule property. The contention of the plaintiff is that the suit schedule property is a vacant land, whereas the contention of the defendant is that there exist structures in the suit schedule property. Thus, there appears to be serious dispute with regard to the nature of the suit schedule property, whether it is a vacant land or any structures are existing on it. The only way to ascertain the actual nature of the suit schedule property is to appoint an Advocate-Commissioner for noting down the physical features of the property. Noting down the physical features that exist at disputed property themselves does not change the circumstances present therein and the Advocate-Commissioner's report would always aid the Court in coming to a just conclusion with regard to the nature of the property and it does not amount to collection of evidence.
The trial Court in the impugned order recorded valid reasons for appointment of Advocate-Commissioner. The petitioner failed to make out any case or raise any substantial ground to interfere with the impugned order of the trial Court. Hence, this Court is not inclined to interfere with the impugned order by which Advocate- 5
LNA, J CRP.No.1489 of 2022 Commissioner was appointed to note down the physical features of the suit schedule property.
9. In the light of the facts, circumstances and the foregoing discussion, this Court does not find any illegality or infirmity in the impugned order warranting interference by this Court.
10. Accordingly, this Civil Revision Petition is dismissed. No costs.
11. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:23.02.2024 dr