Allowed

A.Gopal Reddy v. R.Subramanyam Reddy

Telangana HC22 Feb 2013CRP/5835/2012

Case brief

AI extract

What is this about?

In a suit for perpetual injunction regarding land possession, the High Court set aside the lower court's order appointing an advocate commissioner to note physical features, holding that such appointment amounts to gathering evidence at the threshold stage before trial.

What did the court decide?

The impugned order appointing an advocate commissioner is set aside; the respondent is left open to adduce evidence to disprove the petitioner's claim during trial.

A.Gopal Reddy Vs R.Subramanyam Reddy — Execution and Attachment | Telangana HC (2013)

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*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

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+Civil Revision Petition No.5835 of 2012

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% Dated 22.02.2013

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# A.Gopal Reddy. ….Petitioner

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$ R.Subramanyam Reddy and another. ….Respondents ! Counsel for the petitioner : Sri T.S.Anand ^ Counsel for respondents : Sri K.Mohan Rami Reddy < GIST:

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> HEAD NOTE:

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? Cases referred:

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THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY Civil Revision Petition No.5835 of 2012

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ORDER:

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The petitioner filed O.S.No.491 of 2011 in the Court of I Additional Junior Civil Judge, Chittoor, against the respondents herein, for the relief of perpetual injunction in respect of 9 cents of land in Survey No.419/9 of Ilavarapalli Village, Irala Mandal, Chittoor District. He stated that an extent of 20 cents were owned by him and out of it, he sold 11 cents to the 2^nd respondent and when he was trying to construct a compound wall enclosing 9 cents separating the sold out 11 cents, the respondents started interfering. In an application filed under Order 39 Rules 1 and 2 C.P.C., the trial Court is said to have

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passed an order of status quo. The 1^st respondent herein i.e., 1^st defendant filed I.A.No278 of 2012 under Order 26 Rule 9 C.P.C. with a prayer to appoint an Advocate Commissioner to note the existing features viz., a hut and construction of compound wall. The petitioner opposed the application. The trial Court allowed the I.A. through order, dated 26.09.2012. Hence, this revision.

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Heard Sri T.S.Anand, learned counsel for the petitioner and Sri K.Mohan Rami Reddy, learned counsel for the 1^st respondent.

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The suit filed by the petitioner is the one for the relief of perpetual injunction. The only question that assumes significance in that suit is whether the plaintiff is in possession and enjoyment of the schedule property. The burden squarely rests upon the petitioner to prove the possession. The appointment of commissioners to note the physical features or to undertake other related activities in a suit for injunction is a rarity. The reason is that the plaintiff cannot be permitted to gather evidence to prove his possession and he has to satisfy the Court through oral and documentary evidence. When that is the law on the subject, the appointment of commissioners at the instance of the defendant in such suits is a still rare phenomenon. At any rate, the occasion to appoint an advocate-commissioner would arise, if only the trial of the suit is in progress and a typical question, which needs the examination by a commissioner arises. The appointment of a commissioner cannot be made at the threshold. Such an effort would be treated as a measure to gather evidence.

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Admittedly, in the instant case, the trial is yet to commence and it is only for the petitioner herein to prove his possession. In case, the 1^st respondent is of the view that the boundaries mentioned about the suit schedule are not correct or that the case presented by the petitioner is not true, he can take the relevant plea in the written statement and not only

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cross-examine the petitioner and the other witnesses examined by him but also adduce his own evidence. The appointment of a commissioner that too for noting the physical features at this stage is a pure step aimed at gathering of evidence.

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Therefore, the civil revision petition is allowed and the order under revision is set aside. It is left open to the 1^st respondent to adduce such evidence as he intends to, to disprove the claim of the petitioner.

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The civil miscellaneous petition filed in this civil revision petition shall also stand disposed of. There shall be no order as to costs.

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______________________ L. NARASIMHA REDDY, J

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Date: 22.02.2013 Note: L.R.Copy to be marked. JSU

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THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY

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Civil Revision Petition No.5835 of 2012

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Date: 22.02.2013

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JSU

A.Gopal Reddy v. R.Subramanyam Reddy

Case brief

What is this about?

What did the court decide?

A.Gopal Reddy v. R.Subramanyam Reddy

Case brief

What is this about?

What did the court decide?

What the court decided

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