Dismissed

Duvvuru Mohan Reddy v. Kintrapakam Uma Maheswar Rao

Andhra Pradesh HC11 Jul 2024CRP/545/2024

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision petition challenging an order allowing an application for an Advocate Commissioner. The court held that appointing a commissioner to inspect a wall enclosing disputed land was not premature nor evidence collection, as site verification was essential to resolve factual disputes.

What did the court decide?

The Civil Revision Petition is dismissed with no order as to costs.

Duvvuru Mohan Reddy Vs Kintrapakam Uma Maheswar Rao — Property and Title | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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FRIDAY, THE TWELFTH DAY OF JULY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO

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CIVIL REVISION PETITION No.545 of 2024

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Petition filed under Article 227 of the Constitution of India aggrieved by the Order dated 19-02-2024 Passed in LA No. 74 of 2024 in O.S. No. 337 of 2023 by the Hon’ble Principal Civil Judge (Junior Division) - Cum - Judicial Magistrate of I Class, Puttur, Chittoor District.

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Between;

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iS)

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Duvvuru'Mo'han Reddy, S/o D.Chenga Reddy, Age 69 years,^Hindu Occ; . Agriculturist, R/o. Enamalapallem Village, Appalayagunta Post, Vadamalapeta'Mandal, Tirupati District, A.P.

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...Petitioner/Respondent/Plaintiff

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AND

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Kintrapakam Uma Maheswaf Rao, S/o Late Kesaviah, Age 45 years Hindu, Occ: Agricultural Coolid, R/o. Yanamalapalem Village, Appalayagunta Post, Vadamalapeta Mandal, Tirupati District, A.P.

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Kuntrapakam Murali, S/o K.Chenchu Ramaiah, Age 52 years, Hindu, Occ: Agricultural Coolie, R/o. Yanamalapalem Village, Appalayagunta Post, Vadamalapeta Mandal, Tirupati District, A.P.

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Kuntrapakam Prasad, S/o K.Chengalrayulu, Age 54 years, Hindu, Occ: Agricultural Coolie, R/o. Yanamalapalem Village, Appalayagunta Post, Vadamalapeta Mandal, Tirupati District, A.P

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...Respondents/Respondents/Defendants 1 to 3

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/ ,/ / /

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The District Collector, Tirupati,

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The Revenue Divisional Officer, Tirupati,

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The Tahsidar, Vadamalapeta,

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Respondents/Defendants/Respondents

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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 grant stay of all further proceedings in O.S. No. 337 of 2023 pending on the file of Hon’ble Principal Civil Judge (Junior Division) Cum - Judicial Magistrate of I Class, Putturi

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Counsel for the Petitioner

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: Sri V. Nitesh

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Counsel for the Respondent Nos.1 to 3: Smt. V Hima Bindu, representing on behalf of Sri V Venkata Subbaiah

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The Court made the following:

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■. r

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IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

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HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

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CIVIL REVISION PETITION No.545 of 2024

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Between:

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Duvvuru Mohan Reddy, S/o.D. Chenga Reddy, age 69 years, Hindu, Occ: Agriculturist, R/o.Enamalapallem Village, Appalayagunta Post, Vadamalapeta Mandal, Tirupati District, A.P.

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...Petitioner

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Versus

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Kuntrapkam Uma Maheswar Rao, S/o.Late Kesavaiah, age 45 years, Hindu, Occ:Agricultural Coolie, R/o.Yanamalapalem Village, Appalayagunta Post, Vadamalapeta Mandal, Tirupati District, A.P. & 5 others. ...Respondents

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Counsel for the Petitioner : Sri N. Nitesh

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Counsel for Respondents 1 to 6 : Smt. V. Hima Bindu

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ORDER

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Dt: 12.07.2024

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Heard Sri N. Nitesh, learned counsel for the Petitioner and

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Smt. V. Hima Bindu, learned counsel for the respondents.

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The petitioner herein had filed O.S.No.337 of 2023^before the Principal Civil Judge (Junior Division)-Cum-Judicial Magistrate of

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RRR,J CRP. No.545 of2024

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First Class, Puttur against three private defendants and three official defendants, for grant of permanent injunction, restraining the defendants 1 to 3 therein from interfering with the suit schedule property consisting of Ac.4.13 cents in Sy.No.197-3 and Ac.0.06 cents in Sy,No.197-5B of Thirumandyam Village. Vadamalapet Mandal, Tirupati.

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The case of the petitioner was that, the aforesaid suit schedule property had been purchased by him by way of a registered deed of saie dated 06.09.2006 registered as document No. 1798 of 2006 and that he was in possession of the suit schedule property due to which, the petitioner had also been i issued electronic pass book for the said land.

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The defendants 1 to 3, who are arrayed as respondents 1 to 3 herein, had opposed the suit. The case of the defendants was that they are part of a joint family and their late uncle had acted as the manager of the joint family during his life time, The respondents 1 to 3 contend that their late uncle, as manager of the joint family, had purchased two extents of land under registered deeds of sale dated 19.04.1961. In one deed of sale, the manager of the joint family had purchased Ac.0.21 cents of land in Sy.No.200/1 of the village which was registered as document No.885 of 1961. This deed of sale was executed by one Sri V. Siva Ramayya. Under the second deed of sale

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RRR,J CRP. No.545 of 2024

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the late manager of the joint family had purchased Ac.0.21 cents of land in Sy.No. 197/3 from one Sri V. Rama Krishnaiah and the said deed of sale was registered as document No.883/1961. However, a mistake had taken place in the mention of the survey^{inwhichtheland} was situated. Due to this mistake, the deed of sale recorded the survey as 200/1 instead of 197/3.

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The defendants 1 to 3 also took the plea that the deed^of sale relied upon by the petitioner herein did not convey any title to the petitioner as the vendors of the petitioner themselves do not have any title. The respondents 1 to 3 further contended that the petitioner taking advantage of this lacuna had got the land belonging to the respondents 1 to 3 transferred in his name through other persons and had commenced construction of a compound wall to incorporate^theland belonging to the respondents 1 to 3 within his land holding.

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The respondents 1 to 3 on the basis of the contention^that the petitioner herein was seeking to build a compound^{wallaroundthe} land belonging to the respondents 1 to 3, had moved I.A.No.74 of 2024, for appointment of an Advocate Commissioner,^{tonotedownthe} physical features of the land especially on the question of whether there is a wall enclosing the land of the respondents 1 to 3 along with other lands being claimed by the petitioner.

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RRR,J CRP. No.545 of 2024

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The petitioner had opposed the said application on^the twin grounds that the application is premature and that an application is an attempt to collect evidence rather than a proper application for an appointment of an Advocate Commissioner.

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The trial Court after considering both contentions, had allowed the application, by way of an order dated 19.02.2024. Aggrieved by the said order, the present Civil Revision Petition has been filed.

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Sri V. Nitesh, learned counsel for the petitioner in support of his contentions has relied upon the Judgment of a learned Single Judge of the combined High Court of Andhra Pradesh in the case of Gangavarapu Hanumantha Rao @ Anjaneyulu vs. Battigiri^Ramulu and Others^ and the Judgment of a learned Single Judge^ofthisCourt dated 12.01.2024 in C.R.P.45 of 2024.

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Smt. V. Hima Bindu, learned counsel appearing for Sri V. Venkata Subbaiah, learned counsel for the respondents^relied upon a Judgment of a learned Single Judge of the High Court of Telangana in the case of Enugu Sanjeev Reddy vs. M.A.^Masood</sup>

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The rival pleadings in the case show that one of the issues that will arise is whether document No.883 of 1961 relates to the sale

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^ 2008 (1)'^E.466 ^ 2020 (2) ALD 275 (TS)

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5 RRR,J CRP. No.545 of 2024

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of land admeasuring Ac.0.21 cents in Sy.No.200/1 or in Sy.No.197/3. That is the question that would be answered by the^{trialCourtafterdue} trial. For the time being, the contention of the petitioner that he is building a wall around his own land and the rival contention of the respondent 1 to 3 that the petitioner is building a compound wall around the land ,which is belonging to and which is in the occupation of the respondents 1 to 3 in Sy.No. 197/3 would have to be looked into. For the present, the prayer in the application moved by the respondents 1 to 3 is whether there is a wall encompassing^theentire land or whether there is any land still outside any wall that is being constructed by the petitioner herein.

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The question of extent of the wall at this point of^timecan only be determined by an Advocate Commissioner visiting^thesiteand ascertaining whether there is any such wall constructed^and if such a wall has been constructed whether the land claimed by the respondents 1 to 3 has been enclosed within the compound^wall.The only way for such dispute to be resolved is an inspection^ofthesiteat this point of time. This would necessitate the appointment of an Advocate Commissioner.

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The Judgment of the learned Single Judge of the combined High Court reported in Gangavarapu Hanumantha Rao @ Anjaneyulu vs. Battigiri Ramulu and Others deals with a question of

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6 RRR,J CRP. No.545 of 2024

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whether an Advocate Commissioner can be appointed during^theinitial stage of the suit itself. The learned Single Judge^{hadtakentheview} that early appointment of an Advocate Commissioner at the very inception of the suit is not correct as it may amount^{tocollectionof} evidence. This principle would not be applicable in the present case as the question that needs to be looked into by the Court^{iswhetherthere} is a wall in existence today and whether that wall encompasses the land in question. In such circumstances, the application^cannot be treated as premature.

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On the question of whether appointment of an Advocate Commissioner for this purpose would amount to collection of evidence, I am in respectful agreement that paragraphs 11 and 12 of the Judgment of the learned Single Judge of the Hon’ble High Court of Telangana reported in 2020 (2) ALD 275 (TS), which^{readasfollows:}

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“The object of local investigation under Order XXVI^Rule9 C.P.C. is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but could be taken only from its peculiar nature on the spot. Such evidence will elucidate a point which may otherwise leave any doubt or ambiguity in record.

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In the instance case, the location of the plot claimed by the plaintiff, whether it is in Survey No.38/1 or 43/B can only be ascertained through an Advocate-Commissioner as such evidence is available only on the spot.”

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