Allowed

Kandikattu Mallikarjuna v. Ashwin Jain

Andhra Pradesh HC5 Nov 2024CRP/2218/2024

Case brief

AI extract

What is this about?

Revision under Article 227 against dismissal of an application under Order XXVI Rule 9 CPC to appoint an advocate commissioner to measure and record physical features of suit property. The High Court held localisation of disputed property requires a commissioner, set aside the trial court order, and allowed the appointment with a Mandal Surveyor's assistance.

What the court decided

AI extract

Kandikattu Mallikarjuna Vs Ashwin Jain — Property and Title | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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WEDNESDAY, THE SIXTH DAY OF NOVEMBER

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TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE MS JUSTICE B.S. BHANUMATHI

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CIVIL REVISION PETITION No: 2218 OF 2024

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Between:

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Kandikattu Mallikarjuna, S/o Late Kandikattu Maruthi Prasad, Aged about 54 years, Occ Business, Resident of 16/224, Achari Street, Nellore city.

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...PETITIONER / DEFENDANT No.1

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AND

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Ashwin Jain, S/o Bhanwarlal Jain, Aged about 40 years, R/oD.No. 17/437, Flat No.20, 4TH Floor, D.G.Royal Empire Apartments Opposite Z.P. Office Achari Street, Nellore City.

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Somil Jain, S/o Bhanwarlal Jain, Aged about 37 years, R/oD.No. 17/437, Flat No.20, 4TH Floor, D.G.Royal Empire Apartments, Opposite Z.P. Office, Achari Street, Nellore City.

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Ankit Jain, S/o Bhanwarlal Jain, Aged about 35 years, R/oD.No. 17/437, Flat No.20, 4TH Floor, D.G.Royal Empire Apartments, Opposite Z.P. Office, Achari Street, Nellore City.

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...RESPONDENTS / PLAINTIFFS

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Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to allow the revision by setting aside the order dated 06.09.2024 passed in I.A.No.460 of 2024 in O.S.No.51 of 2024 on the file of the III Additional District Judge, Nellore.

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lA NO: 1 OF 2024:

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in O.S.No.51 of 2024 on the file of the III Additional District Judge, Nellore.

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Counsel for the Petitioner: SMT. Y.L. SIVA KALPANA REDDY

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Counsel for the Respondents: SRI P. RAJASEKHAR

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The Court made the following Order:

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APHC010421452024

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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(Special Original Jurisdiction)

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[3311]

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WEDNESDAY, THE SIXTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE MS JUSTICE B S BHANUMATHI

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CIVIL REVISION PETITION NO: 2218/2024

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Between:

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Kandikattu Mallikarjuna

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...PETITIONER

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AND

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Ashwin Jain and Others

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...RESPONDENT(S)

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Counsel for the Petitioner:

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1.Y L SIVA KALPANA REDDY

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Counsel for the Respondent(S):

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1.P RAJASEKHAR

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The Court made the following:

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BSB, J C.R.P.No.2218of2024

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ORDER:

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This revision petition, under Article 227 of the Constitution of India, is filed challenging the order, dated 06.09.2024, dismissing I.A.No.460 of 2024 in O.S.No.51 of 2024 on the file of the Court of III Additional District Judge, Nellore, filed under Order XXVI Rule 9 CPC to appoint an advocate commissioner directing him to measure the property shown in the suit schedule in accordance with the title deeds of both parties and to note the physical features of the property with the help of the Municipal Surveyor, and to take photographs^andtofilehis report before the Court.

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Heard Smt. Y.L Shiva Kalpana Reddy, learned counsel^forthe petitioner/defendant No.1 and Sri P. Rajasekhar, learned^{counselforthe} respondents/plaintiffs/caveators.

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The facts necessary for disposal of this revision petition, briefly stated, are as follows:

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(a) The case of the petitioner/defendant No.1 is as follows:

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The respondents/plaintiffs, under the guise of ad-interim injunction orders, are removing the existing constructions^{inthesuitsite} by using earth-movers in order to obliterate the physical^{featuresofthe} property. There are number of cases pending relating to the subject

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BSBJ C.R.P.No.2218 of 2024

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matter of the suit property and two cases are pending between the parties before the Court of the Principal Junior Civil Judge, Nellore. The order of injunction will not give them any right to change the physical features of the property during the pendency of the case and it is only meant to protect the features of the property in its condition as on the date of filing of the suit. As the respondents/plaintiffs are making hectic efforts to alter the physical features of the suit property with an oblique motive, it has become necessary to note down the physical^features. Hence, it is prayed to appoint an advocate commissioner.

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(b) The respondents/plaintiffs filed counter opposing the petition and stating that in respect of the own passage of the respondents^shown as ‘ABCD’ in the plaint rough plan, the respondents filed suit for permanent injunction in O.S.no.217 of 2023 on the file of the Court of Principal Junior Civil Judge, Nellore, and along with the suit, an application in I.A.No.344 of 2023 was filed seeking appointment of an advocate commissioner to note down the physical features of the schedule property along with its adjacent properties. An advocate commissioner appointed in that suit visited the schedule property and filed his report along with a rough sketch. Hence, there is no necessity of appointing an advocate commissioner again to measure the properties. The property adjacent to ‘ABCD’ passage of the plaint rough^sketch is the

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4 BSBJ C.R.P.No.2218of 2024

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property of the 2^^ respondent which is an old house. As the same is in dilapidated condition, the 2"*^ respondent got demolished the same and constructed a small shed in the said site. The petitioner, though had no right or interest over ‘ABCD’ passage or over the property^{ofthe2^^} respondent adjacent (east) to ‘ABCD’ passage, is causing^troubletothe respondents. While so, on 28.04.2024, in the early hours, with the help of JCB, the petitioner highhandedly demolished the walls in the respondents’ site, apart from damaging the old house situated in ‘OPQR’ portion of the plaint rough sketch. The respondents immediately lodged a complaint to the police which was registered as a case in FIR No.66 of 2024 against the petitioner. As a counter blast, the petitioner got registered a case in FIR No.67 of 2024. There are no merits in the petition and the same is liable to be dismissed.

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After hearing both sides, the trial Court dismissed the petition holding that an advocate commissioner was already appointed in another suit in O.S.No.217 of 2023 and he filed his report and the same was also filed by the respondents along with the plaint, and as such, there is no need to appoint an advocate commissioner in the present suit.

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Aggrieved by the same, this revision petition is preferred.

IS.

‘3?

BSBJ C.R.P.No.2218of 2024

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The learned counsel for the petitioner stated that solely on the ground that report of a commissioner in another suit was filed along with the plaint, the trial Court refused to appoint a commissioner, but it failed to notice that the said suit property is item No.3 of the present suit schedule property which i IS a passage of 5 ankanams and no relief was sought regarding item No.3 of the property, and therefore, the report of the commissioner in O.S.No.217 of 2023 i is of no help to find out the physical features of the suit schedule property. It is further contended that no delay is caused in filing the petition and that the report of the commissioner would help in resolving the dispute.

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The learned counsel for the respondents supported the observations of the trial Court and urged to dismiss the petition.

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Whenever there is a dispute regarding the boundaries or physical features of the property or any allegation of encroachment as narrated by one party and disputed by another party, the facts have to be physically verified, because the recitals of the documents may not reveal the true facts and measuring of land may become necessary. When there is an issue with regard to identity of the property in litigation, it is necessary to appoint a commissioner for localizing the property which may be even by taking necessary assistance from a qualified surveyor and the same cannot be termed as collection of evidence.

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BSBJ C.R.P.No.2218 of 2024

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As rightly contended by the revision petitioner, the report in the other case would not help to decide the //s in the present case. Moreover, appointment of commissioner would help in adjudicating the matter in the present case effectively. Therefore, the trial Court ought to have allowed the petition. Since the trial Court failed to exercise its jurisdiction, this is a matter fit to allow the petition.

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In the result, the civil revision petition is allowed setting aside the order, dated 06.09.2024, passed by III Additional District Judge, Nellore in I.A.No.460 of 2024 in O.S.No.51 of 2024. As a sequel, I.A.No.460 of 2024 is allowed. The trial Court is directed to appoint an advocate commissioner to identify the suit schedule property with the help of documents of both parties and the assistance of a Mandal Surveyor and fix the fee payable by the petitioners.

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There shall be no order as to costs.

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Miscellaneous petitions pending, if any, shall stand closed.

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//TRUE COPY//

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SD/- K SRINIVASA RAJU assistant registrar

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¶71

SECTION OFFICER

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1- The III Additional District Judge, Nellore. ne CC to Smt. Y L Siva Kalpana Reddy, Advocate [OPUC]

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1. One CC to Sri P. Rajasekhar, Advocate [OPUC] 4. Three CD Copies

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GLM

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vna

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HIGH COURT DATED;06/11/2024

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ORDER

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CRP.No.2218 of 2024

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of
m
I 2 -I DEC 202'i „
^ . Current Section

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ALLOWING THE C.R.P. WITHOUT COSTS.

Kandikattu Mallikarjuna v. Ashwin Jain

Case brief

What is this about?

What the court decided

Kandikattu Mallikarjuna v. Ashwin Jain

Case brief

What is this about?

What the court decided

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