Court allowed the civil revision petition setting aside the trial court’s order appointing an Advocate-Commissioner to measure disputed land in a different survey number belonging to a non-party defendant’s son.
The order dated 27.04.2012 in I.A.No.68 of 2012 allowing appointment of an Advocate-Commissioner is set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION No.2741 OF 2012
DATED 4 th FEBRUARY, 2013
BETWEEN: Koya Laxmaiah
… Respondent (Plaintiff)/Petitioner
A n d
Bejavada Seshagiri Rao
… Petitioner(Defendant)/Respondent
THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION No.2741 OF 2012
O R D E R
The petitioner is the plaintiff in O.S.No.230 of 2011 on the file of the learned Senior Civil Judge, Khammam. He filed the present Civil Revision Petition aggrieved by the order dated 27.04.2012 passed by the trial Court in I.A.No.68 of 2012 in O.S.No.230 of 2011 filed by the sole defendant in the suit. The said I.A. was filed by the sole defendant for appointment of an Advocate-Commissioner to get the land claimed by the plaintiff and the land of the defendant’s son, admeasuring Ac.200 guntas in Sy.No.119/E, measured with the help of a Surveyor and with the assistance of the village map. By order dated 27.04.2012 passed in the said I.A., the trial Court allowed this application and appointed an Advocate-Commissioner to get the land claimed by the plaintiff and the land of the defendant’s son, admeasuring Ac.2-00 guntas in Sy.No.119/E, measured with the help of the Mandal Surveyor and with the assistance of the village map.
The suit, O.S.No.230 of 2011, was filed by the plaintiff for a perpetual injunction against the sole defendant. The suit scheduled property is an agricultural land admeasuring Ac.1-34 guntas in Sy.No.117/AA/4 situated at Ammapeta Village, Mudigonda Mandal, Khammam District.
This Court, while issuing notice to the respondent/defendant on 04.07.2012, granted interim suspension of the order under revision for a period of time. The order was not extended thereafter, but it is stated that the same was not given effect to and the suit proceedings are continuing independently.
The aforesaid facts reflect that the survey number of the suit scheduled property is altogether different from the survey number in which measurement is now directed to be undertaken by the Advocate-Commissioner. Further, the defendant’s son is not a party to the suit. The plaintiff, having filed the suit for perpetual injunction against the sole defendant, would necessarily have to prove his case and would stand or fall on the strength thereof. In such a situation it is incomprehensible as to why the defendant wanted to get the land in a
different survey number measured. In the event the plaintiff is laying claim to the property which belongs to the defendant’s son, his suit would have to fail on the simple ground that the defendant’s son was not made a party to the suit.
Viewed thus, there is no justification for the trial Court to direct appointment of an Advocate-Commissioner to measure the plaintiff’s land in the context of and in juxtaposition to the land belonging to the defendant’s son in a different survey number. The order dated 27.04.2012 passed by the learned Senior Civil Judge, Khammam, in I.A.No.68 of 2012 in O.S.No.230 of 2011 is therefore unsustainable on facts and in law and is accordingly set aside.
The Civil Revision Petition is allowed. CRP MP No.3644 of 2012 shall stand dismissed in the light of this final order. No costs.
-------------------------SANJAY KUMAR,J 4th FEBRUARY, 2013. PGS
2 issues framed by the court
Whether the trial court erred in directing the appointment of an Advocate-Commissioner to measure land in a different survey number belonging to a non-party.
Whether the impugned order allowing the commission appointment is sustainable when the plaintiff sues only the sole defendant for a perpetual injunction.
Koya Laxmaiah
Bejavada Seshagiri Rao
Sanjay Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
