Dismissed

Badur Subbarama Reddy v. Veerapelle Eswara Redddy

Andhra Pradesh HC1 Sept 2023CRP/276/2022

Case brief

AI extract

What is this about?

Justice Bhanutamathi dismissed a Civil Revision Petition under Article 227. The petitioner challenged the trial court's dismissal of a prayer for appointing a commissioner to note physical features in a title suit. The bench held that existing dispute could be resolved via documents and oral evidence, rendering a commissioner unnecessary. The petition was dismissed due to lack of merit and delay.

What did the court decide?

Civil Revision Petition dismissed; Trial Court to dispose of suit uninfluenced by observations in this order; No order as to costs.

Badur Subbarama Reddy Vs Veerapelle Eswara Redddy — Property and Title | Andhra Pradesh HC (2023)

¶1

¶2

BSB, J CRP.No.276 of 2022

¶3

THE HON’BLE MS JUSTICE B.S.BHANUMATHI

¶4

C.R.P.No.276 of 2022

¶5

ORDER :

¶6

The Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 18.06.2015, dismissing I.A.No.158 of 2014 in O.S.No.148 of 2014 on the file of the Court of Additional Senior Civil Judge, Tirupati filed by the plaintiff under Order XXVI Rule 9 of CPC R/w 151 CPC to appoint Advocate Commissioner to note down the physical features of the petition A and B schedule properties along with other features that would be shown at the time of visit of the Commissioner and to file report.

¶7

The plaintiff filed suit for declaration of title to plaint B schedule property of the plaintiff consequently to direct the dependents to delivery of possession as the plaint B scheduled property which is part and parcel of plaint A scheduled property to the plaintiff by duly removing the unauthorized compound wall constructed therein, failing which to get the same done through process of law and also for grant of mandatory injunction to remove the un-authorized compound wall raised in the B-schedule property and caused.

¶8

¶9

BSB, J CRP.No.276 of 2022

¶10

The case of the plaintiff is briefly as follows:

¶11

(a) The land of an extent of Ac.1.14 cents in Survey No.108 of Avilala Revenue Village belongs to one E. Srinivasulu Reddy and he divided the same into 12 plots and sold them to different parties. Among those plots, plot No.12 is adjacent to plot No.9 on its eastern side. For the purpose of clarity, the plaint plan is here below mentioned.

¶12

ANNEXURE

¶13

33 feet wide road

¶14

		E D		C B	A
		20 feet	20 feet	20 feet	28 feet
Plot 8	10 feet	Plot No.9 Part Def Nos.1’s site	Plot No.9 Part Def Nos.1’s site	Plot No.12 Part Def Nos.1’s site	Plot No.12 Part Plaintiff’s A- Schedule plot	95 feet
		20 feet	20 feet	20 feet	12 feet
		F G		H I	J

¶15

(b) Plot No.9 is shown as CEFH. Plot No.12 is shown as ACH J. The plot No.9 is divided into two equal halves from north to south and they are DEFG and CDGH. Similarly plot No.12 as also divided into two parts from north to south and they are ABIJ and BCHI. Their linear measurements are as shown in the plaint plan.

¶16

¶17

BSB, J CRP.No.276 of 2022

¶18

(c) E. Srinivasula Reddy sold the eastern part of plot No.9 and western part of plot No.12 together to Avula Prabhavathamma under the registered sale deed dated 30.06.1998. This is shown as BDGI. In turn, Smt. A. Prabhavathamma sold the same to the 1^st defendant under the registered sale deed dated 04.10.2000. The remaining western part of plot No.9 i.e., DEFG was sold by E. Srinivasula Reddy to Nandavaram Radhakrishna Moorthy. The 1^st defendant purchased the same from Nandavaram Radhakrishna Moorthy. Thus, the 1^st defendant became the owner of BEFI i.e., three (03) bits containing the whole

¶19

extent of plot No.9 and the western part of plot No.12. E. Srinivasula Reddy sold the remaining eastern part of plot No.12 i.e., ABIJ to Smt. P. Kameswari under the registered sale deed dated 17.04.1990. Smt. P. Kameswari sold the same to Kola Varaprasad under the registered sale deed dated 24.01.1992. The same was in turn sold by Kola Varaprasad to the plaintiff under the registered sale deed dated 10.05.2004. Thus, the plaintiff is the absolute owner and has been in possession of the property shown as ABIJ since then.

¶20

¶21

BSB, J CRP.No.276 of 2022

¶22

(d) The 1^st defendant is the father of the 2^nd defendant. Taking advantage of the absence of the plaintiff, in order to occupy the plaintiff’s property, raised the compound wall measuring 6 feet east to west on both sides, north to south 99 feet throughout its length. Subsequently, the plaintiff objected and the same was demolished on 21.12.2013. On the east of the plaintiff’s site, one of the neighbors is Sidda Reddy. There is a strip of uneven zig-zag land between the plaintiff’s site and the land of Sidda Reddy measuring east to west 6 feet and north to south 99 feet on both sides, which is also in possession and enjoyment of the plaintiff and it is the eastern boundary of A-schedule property. It is known that boundaries prevail over the extent. If at all any claim is to be made over the strip of land on the eastern side of the plaintiff’s property, it can be made by E. Srinivasulu Reddy only but not by third parties.

¶23

(e) 1^st defendant issued the legal notice dated 26.12.2013 to the plaintiff admitting that plaint A-schedule property belongs to the plaintiff absolutely, but further made certain false allegations. On 20.01.2014, the defendants illegally and high handedly, without any right whatsoever, raised a cement brick compound wall encroaching into the plaintiff’s A-schedule property and to an extent of 6 feet

¶24

¶25

BSB, J CRP.No.276 of 2022

¶26

width east to west and 99 feet north to south throughout its length and the wall was raised to an extent of 5 feet height, occupying the site, in spite of objections made by the plaintiff. The plaintiff is a retired teacher and he is unable to resist the illegal and high handed acts of the defendants. Hence, the suit is filed.

¶27

The 2^nd defendant filed a written statement with the following averments and the same were adopted by the 1^st defendant. The main and material averments in the plaint are denied. There is no cause of action to file so. There are no specific A-schedule property and B-schedule property as mentioned by the plaintiff. It is true that E. Srinivasulu Reddy was an absolute owner of land to an extent of Ac.1.14 cents and made the same into 12 plots and sold them to different parties, including the plaintiff and the defendants. E. Srinivasulu Reddy sold part of plot No.9 and part of plot No.12 to A. Prabhavathamma on 03.06.1988. Smt. A. Prabhavathamma sold the same to the defendants on 04.10.2000. E. Srinivasulu Reddy sold part of plot No.9 to N. Radhakrishna Moorthy on 11.01.1988. He, in turn, sold it to the 1^st defendant on 28.01.2004. After demise of E. Srinivasulu Reddy, his daughter Avula Sujatha agreed to sell the piece of land i.e., western side of plot No.9 and eastern

¶28

¶29

BSB, J CRP.No.276 of 2022

¶30

side of plot No.8 for a consideration of Rs.2,00,000/- and received Rs.90,000/- on 25.03.2013 and the balance amount of Rs.1,10,000/- on 02.01.2014 and executed the sale agreement and delivered possession of the property to the 1^st defendant on that date and later executed the registered sale deed on 05.07.2014. So, the 1^st defendant became an absolute owner of the same. Thus, the defendants denied the right and possession claimed by the plaintiff.

¶31

Along with the suit the plaintiff filed I.A.No.158 of 2014. The petition was registered by filing the counter reiterating the contents of the written statement. After hearing both parties the trial Court dismissed the petition on 18.06.2015 holding that the plaintiff filed the suit for declaration of title and recovery of possession claiming title over B-schedule property stating that it is part and parcel of A-schedule property and further that in a suit for declaration of title, the burden is on the plaintiff to prove his title basing on relevant and authenticated documents and also the evidence of the neighbouring owners on the boundaries and the existence of the other plots and therefore noting down the physical features by Advocate Commissioner would create evidence for the petitioner and such collection and creation of evidence basing on physical features is not permissible under law.

¶32

¶33

BSB, J CRP.No.276 of 2022

¶34

Having been aggrieved by the order, initially the plaintiff preferred a revision in CRP.No.1842 of 2016, but the same was dismissed as infructuous on 04.09.2018 as the suit was dismissed for default on 17.11.2016. However, the suit was restored on 11.10.2018. But, no steps were taken to get the earlier revision petition restored and a fresh revision petition was filed on 08.02.2022 contending that when there is controversy as to identification, location or measurement of the land, local investigation should be done so that rights can be adjudicated and also that mere looking into the sale deed and other evidence, determination of rights is not possible and in this regard, the revision petitioner placed reliance on the decisions of this High Court in Bandaru Mutyalu and another Vs. Palli Appalaraju¹ and Mallikarjuna Srinivasa Gupta Vs. K. Sheshirekha² .

¶35

It is further stated that it is incorrect that the petitioner filed the petition with false allegations and rough plan due to rise in the rates of the plots and it is further false that the respondents never attempted to occupy the site.

¶36

The learned counsel for the revision petitioner submitted that appointment of Commissioner would not

¶37

1 2013 (6) ALT 26

¶38

2 2006 (3) ALD 362

¶39

¶40

BSB, J CRP.No.276 of 2022

¶41

amount to collection of evidence and it is required to put a quietus to the lis as there is need to prove the encroachment of the land with reference to the sale deeds of both parties. In addition to the decisions cited in the revision petition, he placed reliance on the decision of the Supreme Court in

¶42

Haryana Waqf Board Vs. Shanti Sarup and Others³

¶43

wherein held at para 4 to 7 as follows.

¶44

“4. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a local commissioner under Order 26 Rule 9 CPC.

¶45

5. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorized possession in respect of the suit land by them as per Para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected.

¶46

6. It is also not in dispute that even before the appellate court, the appellant Board had filed an application for appointment of a local commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at

¶47

3 (2008) 8 SCC 671

¶48

¶49

BSB, J CRP.No.276 of 2022

¶50

all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the local commissioner should be appointed for the purpose of demarcation in respect of the suit land.

¶51

7. For the reasons aforesaid, we are of the view that the High Court ought to have considered this aspect of the matter and then decided the second appeal on merits. Accordingly, we set aside the judgment and decree passed in the second appeal and the second appeal is restored to its original file.”

¶52

The learned counsel for the revision petitioner further submitted that since the revision petition is filed under Article 227 of the Constitution of India, the ground of delay in filing the petition cannot be raised by the respondents and placed reliance on the decision in Mallikarjuna Srinivasa Gupta case referred supra.

¶53

The learned counsel for the respondents submitted that though the earlier revision petition was dismissed long back in 2018, the present petition was again filed in February, 2022. She further stated that some steps ought to have been taken by the petitioner to get it restored or reconstructed, but the petitioner cannot file a fresh revision petition. She further submitted that after closing of the evidence of the defendants, this fresh revision petition was filed.

¶54

¶55

BSB, J CRP.No.276 of 2022

¶56

With regard to the merits of the matter, she submitted that the fact that the compound wall was constructed is admitted by both parties and therefore noting physical features as prayed by the petitioner would not help in proving the title of the plaintiff. She further stated that though this Court has extra-ordinary jurisdiction under Article 227 of Constitution of India, if there is just reason established by the petitioner for filing the petition at a belated stage, but, the petitioner did not show as to why the fresh petition was filed at the far end of the case, keeping quite all through after dismissal of the earlier revision petition. She further stated that as the matter stands posted today for pronouncement of judgment and in the absence of any valid reason, there is no need for considering the revision at this juncture.

¶57

In reply, the learned counsel for the revision petitioner submitted that even though there is no specific prayer for directing the Commissioner to measure the site, by exercising the jurisdiction of this Court under Article 227, the Commissioner can be further directed to take measurements also, to serve the purpose of appointment of Commissioner, so as to resolve the dispute in a case by identifying the encroachment. He further submitted that the Supreme Court, in the case of Haryana Waqf Board referred supra, gave

¶58

¶59

BSB, J CRP.No.276 of 2022

¶60

such a direction. He further submitted that the petitioner would have given a work memo to the Commissioner to take measurements, if at all a Commissioner was appointed by the trial Court and therefore it is not just to note down the physical features, the purpose of appointing a Commissioner, but also is to note the features by taking measurements with the help of Mandal Surveyor and therefore this Court may order appointment of Commissioner with a direction to note down physical features and also take measurements with the help of Mandal Surveyor.

¶61

The learned counsel for the revision petitioners submitted that unless a Commissioner is appointed and the property is localized, it would create problem in executing the decree, in case the plaintiffs succeed in the suit and therefore, it is necessary to appoint a Commissioner.

¶62

In response to the reply, the learned counsel for the respondents submitted that the plaintiff has not taken any steps to implead the vendor i.e., the daughter of E. Srinivasulu Reddy by challenging the sale deed executed by her on July, 2014, though such plea was taken very long back when the written statement of the 1^st defendant was filed. She further submitted that the plaintiff has to question the sale deed.

¶63

¶64

BSB, J CRP.No.276 of 2022

¶65

According to the petitioner, there is excess site on eastern side of Plot No.12 which is under occupation of the petitioner and the petitioner says that it is the original owner who can lay claim over the same but not the owner of BEFI property. On the other hand, the first defendant who is owner of BEFI says that the excess site is on the western side of their property and that the same was purchased from the legal heir of the original owner under registered sale deed, which is obviously executed subsequent to filing of this suit. Therefore, as on the date of the filing of the suit and the date of disposal I.A.No.158 of 2014, the first defendant claims title and possession over the said site to be purchased on 05.07.2014.

¶66

In the light of the foregoing discussion, the present suit for declaration of title and delivery of possession can be adjudicated basing on the documents of title filed by both parties and there is no need for appointment of commissioner to note any physical features by which title can be adjudicated. Moreover, the petitioner don’t seek the measurements of the property to identify whether there is any encroachment or not. The submission that even if a commissioner is appointed to note the physical features, at the time of inspection, measurements can be taken by the

¶67

¶68

BSB, J CRP.No.276 of 2022

¶69

commissioner to answer the work memo given by a party is not tenable as the commissioner cannot go beyond directions in a warrant to answer altogether a new matter. As such, mere noting of physical features cannot establish the case of either party. Moreover, the existence of a compound wall is not in dispute. The question is only whether there is any encroachment or not. In the light of the additional sale deed which the first defendant claims that she purchased from the legal heir of the original owner, the dispute can be resolved by taking documentary and oral evidence. Therefore, it cannot be said that there is dispute of identity of the property or that regularization of the property is necessary in the peculiar facts and circumstances in this case. Therefore, the decision cited by the learned counsel for the petitioner, wherein it is held that appointment of a commissioner would help in resolving the dispute by regularizing the disputed property are not applicable and would not help the revision petitioner. As such, there is no merit in the revision petition.

¶70

In the result, the Civil Revision Petition is dismissed. It

¶71

is made clear that the observations made in this order are for the purpose of this revision petition only and the trial Court shall dispose of the suit uninfluenced by the observations in this Order.

¶72

¶73

BSB, J CRP.No.276 of 2022

¶74

There shall be no order as to costs. Pending

¶75

miscellaneous applications, if any, shall stand closed.

¶76

___________________________ JUSTICE B.S.BHANUMATHI

¶77

Date : 01-09-2023 PMK/NSM

¶78