Allowed

Smt. Jasti Durga Bhavani, v. D.Yellaiah (died Per Lrs. D.3 to 5)

Telangana HC15 Dec 2011CRP/5011/2011

Case brief

AI extract

What is this about?

Petitioner appealed the appointment of an advocate commissioner to ascertain survey numbers in a property dispute. The court held that in a suit for injunction, appointing a commissioner to clarify survey boundaries is impermissible and set aside the lower court order.

What did the court decide?

The order appointing the advocate commissioner to fix boundaries and ascertain survey numbers is set aside.

Smt. Jasti Durga Bhavani, Vs D.Yellaiah (died Per Lrs… — Property and Title | Telangana HC (2011)

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THE HON’BLE Ms. JUSTICE G. ROHINI

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CIVIL REVISION PETITION No. 5011 OF 2011

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Dated: 15.12.2011

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Between :

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Smt. Jasti Durga Bhavani … Petitioner And

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D.Yadaiah and 3 others

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… Respondents

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The Court made the following:-

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THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No. 5011 OF 2011

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O R D E R:

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The revision petitioner is the plaintiff in O.S.No.1527 of 2009 on the file of the Court of the III Additional Junior Civil Judge, Ranga Reddy District, at L.B.Nagar, Hyderabad. The suit is filed against the respondents herein for perpetual injunction restraining from interfering with the possession and enjoyment over the suit schedule property, which is described as plot bearing No.6 in survey Nos.50, 51 and 56 admeasuring 1318 square yards situated at Gowlidoddi, Gopanapally Village, Serilingampally Mandal, Ranga Reddy District.

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The suit was contested by the defendants by filing the written statement. The evidence on behalf of the plaintiff was completed on 28.02.2011 and while the matter was coming up for the evidence on behalf of the defendants, on 19.08.2011 the defendants filed I.A.No.957 of 2011 under Order XXVI Rule 9 of C.P.C for appointment of an advocate commissioner for the purpose of fixing the boundaries in survey Nos.50, 51, 56 and 57 by demarcating the same with the assistance of the competent surveyor to ascertain whether the suit schedule property falls in survey Nos.50, 51 and 56 or survey No.57. Though the plaintiff opposed, the said application was allowed by the Court below by order dated 16.09.2011. Aggrieved by the same, the present Revision Petition is filed by the plaintiff.

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I have heard the learned counsel for both the parties and perused the material available on record.

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The case of the plaintiff is that the suit schedule plot was purchased by her under a registered sale deed dated 28.09.1996 from N.Appa Rao and N.Bhaskar Rao and since then she has been in possession and enjoyment of the same. It is also pleaded that the vendors of the plaintiff purchased the land bearing survey Nos.50, 51 and 56 from the defendants and others by way of a registered sale deed dated 18.12.1995.

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In the written statement, it was contended by the defendants that though the vendors of the plaintiff had purchased Ac.3.20 guntas in

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survey Nos.50, 51 and 56 from defendant No.1 and other family members, the land in survey No.57 admeasuring Ac.2.10 guntas was not sold at any point of time and the said land is contiguous to the Ac.3.20 guntas of land situated in survey Nos.50, 51 and 56. It is alleged that taking advantage of the contiguity of the land, the vendors of the plaintiff had illegally sold the land in survey No.57 belonging to defendant No.1 and his family members and under the guise of the said sale transaction, the plaintiff is attempting to interfere with the possession of defendant No.1 in respect of the land in survey No.57. It is contended that the plaintiff cannot claim any title in respect of the said land in Sy.No.57.

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While reiterating the said plea, the defendants filed the application for appointment of commissioner contending that it is necessary to appoint an advocate commissioner for the purpose of fixing the boundaries and demarcating the survey Nos. 50, 51, 56 and 57 with the assistance of the competent surveyor.

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Learned counsel for the revision petitioner while relying upon the decisions of this Court in Bongu Ramulu and another v. Gudur Narender Reddy^[1] and G.Nagabhushanam v. T.Eswaramma^[2] , vehemently contended that the main suit being for injunction simpliciter the burden lies on the plaintiff to prove her possession on the date of the suit and therefore, the appointment of commissioner for fixation of boundaries and demarcation of the suit schedule land is impermissible under law since the same would amount to collection of evidence in favour of one of the parties.

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On the other hand, the learned counsel for the respondents relied upon Varala Ramachandra Reddy vs. Mekala Yadireddy and others^[3] , Shaik Sareena Kasam vs. Pattan Saheb^[4] and Mohammed Mahmood Ali vs. Municipal Council, Suryapet, Nalgonda Distric t^[5] while seeking to justify the order under Revision.

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It is true that even in a suit for injunction simpliciter, if the Court

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finds that in the facts and circumstances of the case it is essential to notice the true facts on the spot, an advocate-commissioner can be appointed. The said principle has been reiterated in Varala Ramachandra Reddy’s case (supra 3) and Shaik Sareena Kasam’s case (supra 4).

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However, as rightly submitted by the learned counsel for the petitioner, it is for the revision petitioner/plaintiff to establish the possession. Particularly in the light of the plea taken in the written statement that the suit plot is situated in survey No.57, but not in survey Nos.50, 51 and 56, the burden is very heavy on the plaintiff to establish her case. Moreover, the prayer in the application in question, which is filed by the defendants, is not for the purpose of clarification of the physical features, but it is for the purpose of ascertaining whether the suit plot is situated in survey Nos.50, 51 and 56 or survey No.57. The applicant also seeks fixation of boundaries. The said prayer, in my considered opinion is impermissible in a suit for injunction simpliciter. Therefore, the order under Revision cannot be sustained and the same is accordingly set aside.

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In the result, the Civil Revision Petition stands allowed. No costs.

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___________

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Date: 15.12.2011 Ivd

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[1] 1998 (3) ALD 657 [2] 2009 (3) ALT 651 [3] 2010 (4) ALD 198 [4] 2011 (4) ALD 231 [5] 2008 (5) ALT 797

Smt. Jasti Durga Bhavani, v. D.Yellaiah (died Per Lrs. D.3 to 5)

Case brief

What is this about?

What did the court decide?

Smt. Jasti Durga Bhavani, v. D.Yellaiah (died Per Lrs. D.3 to 5)

Case brief

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What did the court decide?

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