Single judge allowed civil revision. Held that since parties claim different extents with different boundaries and petitioner alleges land is Christian burial ground, injunction cannot be decided without clarifying facts; Commissioner appointment remanded.
Lower court order set aside; Civil Revision Petition allowed with no costs.
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THE HON’BLE SRI JUSTICE N.V. RAMANA CIVIL REVISION PETITION No. 1097 of 2011
ORAL ORDER:
This civil revision petition is filed against the order dated 09.02.2011, passed in I.A. No. 1409 of 2010 in O.S. No. 735 of 2008 by the Principal Junior Civil Judge, Tirupati, Chittoor District.
Respondent No.1 filed the suit against the petitioner and two others praying to grant permanent injunction, restraining them from interfering with the suit schedule property in an extent of Ac. 1-00 in S.No. 110/1 of Thookivakam Revenue village. The petitioner, as defendant No.2 filed written statement denying possession and enjoyment of the suit schedule property by the plaintiff-1st respondent.
Now the petitioner filed the present application contending that the property in an extent of Acs.4-84 cents in Sy. No.110/1, Thookivakam revenue village, belongs to Christian community and that the same is being used as burial ground for the last more than 75 years and that there are about 400 to 500 cemeteries in existence. That respondent No.1 in the guise of injunction is seeking to encroach the property, and therefore, it is necessary that an Advocate Commissioner has to be appointed to note down the physical features of the suit schedule property with the assistance of Surveyor. Respondent No.1 contested the application contending that the plaint schedule property is only Ac.1-00 in Sy. No. 110/1. The suit schedule property is different from the property claimed by the petitioner and other defendants and that the boundaries of the two properties are different from the petition schedule property. That name of respondent No.1 in respect of the suit schedule property, is reflected in the revenue records and that the Tahsildar, Renigunta, has also issued pattadar pass book. That the suit schedule property is private land and
not Christian property, that there are no cemeteries and as such question of removing them does not arise. The petitioner after examination of his evidence as D.W.1 and when the suit is posted for arguments, for collection of evidence and with a view to delay the proceedings has filed the present application.
The Court below having considered the rival contentions, dismissed the application holding that if the relief as prayed for by the petitioner is granted it amounts to collection of evidence, which cannot be permitted.
Heard the learned counsel for the petitioner and the learned counsel for respondent No.1 and perused the order under revision.
The suit filed by respondent No.1, admittedly, is one for permanent injunction. The relief sought by him is only in respect of an extent of Ac.1.00 in Sy. No. 110/1, Thukivakani revenue village. It is the specific case of respondent No.1 that the suit schedule property and the property claimed by the petitioner and respondent Nos. 2 and 3 are different and that the boundaries are also different. While it is the case of the petitioner, who is defendant No.1 that the property in an extent of Acs. 4-84 cents in Sy. No.110/1, Thukivakani revenue village, belongs to Christians, that the land is being used as burial ground and that there are about 400-500 cemeteries in existence in the said land and that respondent No.1 in the guise of injunction, is seeking to encroach into their land.
There is no doubt that evidence of the parties is led and the matter is posted for arguments, but according to the own admission of respondent No.1, the land claimed by him is different from the land claimed by the petitioner and respondent Nos. 2 and 3 and that the boundaries are also different. That being his case, and considering the fact that it is the specific case of the petitioner that the suit schedule property, forms part of the suit schedule property, which respondent No.1 is seeking to encroach in the guise of injunction and that the land is being used for cemeteries and that there are about 400 to 500
cemeteries in existence, and as both respondent No.1 and the petitioner are claiming that the suit schedule property belongs to them, I am of the considered opinion that for better adjudication of the dispute, the Court below ought to have allowed the present application filed by the petitioner for appointment of Advocate Commissioner to note down the physical features of the suit schedule property.
Hence, for the foregoing reasons, the order under revision cannot be sustained, and the same is accordingly set aside. Consequently, the C.R.P. is allowed. No costs.
________________ Justice N.V. Ramana
Date: 23.12.2011 Nn/ksr
THE HON’BLE SRI JUSTICE N.V. RAMANA
CIVIL REVISION PETITION No. 1097 of 2011
23.12.2011
1 issue framed by the court
Whether the lower court erred in dismissing the petitioner's application for appointment of an Advocate Commissioner to note physical features of disputed land.
Petitioner
Respondent No.1
Respondent No.2
Respondent No.3
N.V. Ramana
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
