Allowed

Mohd. Azmath Ali v. Mrs. Harbans Kaur

Telangana HC19 Jan 2012CRP/1077/2011

Case brief

AI extract

What is this about?

The High Court set aside the lower court's order dismissing an application for an Advocate-Commissioner. The revisional court held the lower court misdirected itself in focusing on the number of shutters rather than confirming physical features relevant to property usage rights, and allowed the application.

What did the court decide?

The application (I.A.No.378/2010) is allowed and the lower court is directed to appoint an Advocate-Commissioner.

Mohd. Azmath Ali Vs Mrs. Harbans Kaur — Property and Title | Telangana HC (2012)

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HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY

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C.R.P.No.1077 of 2011

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Date : 19-1-2012

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Between: Mohd. Azmath Ali .. Petitioner And Mrs. Harbans Kaur and others .. Respondents

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Counsel for petitioner : Sri Mohd. Osman Shaheed Counsel for respondents : None appeared

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The Court made the following:

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ORDER:

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This Civil Revision Petition is filed against order dated 18-2-2011 in I.A.No.378/2010 in O.S.No.5499/2009 on the file of the learned III Junior Civil Judge, City Civil Court, Hyderabad.

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Even though respondent Nos.1 to 4 have entered appearance through Sri Pawan Kumar Agarwal, no one appeared at the hearing on their behalf. The learned counsel for the petitioner has stated that respondent No.5, being the predecessor-in-title, is only a formal party and that no relief is being claimed against him.

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The petitioner filed O.S.No.5499/2009 for declaration of his right to use common areas of 10 feet, toilet, bathroom and staircase. The petitioner filed I.A.No.378/2010 for appointment of an Advocate-Commissioner to note down the physical features regarding the suit passage with particular reference to the existence of shutter in the suit passage belonging to the petitioner on the Eastern side of mulgi No.4-1-365/E. This application having been dismissed by the Court below, the petitioner filed the present Civil Revision Petition.

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In his affidavit filed in support of the application, the petitioner has stated that the purpose of his seeking the appointment of an Advocate-Commissioner is to note down whether there exists shutter belonging to him which opens into the suit schedule passage. The Court below, however rejected the application on the reasoning that it is irrelevant whether the petitioner’s property is having one or more shutters.

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In my opinion, the Court below has not addressed itself to the real point at issue. As noted above, it is the case of the petitioner that he is entitled to use the suit schedule passage along with toilet, bathroom and the staircase. Evidently, in order to establish his case that usage of the passage, toilet, etc., is connected with enjoyment of his mulgi, which the petitioner claims to open into the suit schedule passage, he sought for appointment of an Advocate-Commissioner to note down the physical features of the suit schedule property. The Court below misdirected itself in thinking that the appointment of an Advocate Commissioner is sought for noting down the number of shutters claimed to be in existence.

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On the above analysis, the order under revision is setaside. I.A.No.378/2010 in O.S.No.5499/2009 is allowed. The Court below is directed to appoint an AdvocateCommissioner as prayed in the said application. The Civil Revision Petition is accordingly allowed.

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As a sequel, CRP.M.P.No.1523/2011 is disposed of as infructuous.

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Justice C.V. Nagarjuna Reddy

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Date : 19-1-2012 AM

Mohd. Azmath Ali v. Mrs. Harbans Kaur

Case brief

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Mohd. Azmath Ali v. Mrs. Harbans Kaur

Case brief

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