In this revision, the High Court held that the Single Judge erred in fact by relying on an alleged admission by a witness regarding land possession which was not supported by the evidence. The Court found the impugned order erroneous and contrary to evidence.
The impugned order dated 05.03.2014 was set aside and the matter was remanded for fresh disposal.
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.
HONOURABLE SRI JUSTICE A.V.SESHA SAI CIVIL REVISION PETITION No.2057 of 2014
O R D E R:
Defendants in O.S.108/2008 on the file of the Court of the Senior Civil Judge, Miryalaguda are the petitioners in the present revision. This revision is directed against the order of the learned Senior Civil Judge, Miryalguda, dismissing I.A.1002/2013 filed by the petitioners herein under the provisions of order 26 Rule 9 read with Section 151 of the Code of Civil Procedure.
2. Heard Sri P. Rajasekhar, learned counsel for the petitioners and S ri G.L.Narasimha Rao, learned counsel for the respondents apart from perusing the material available on record.
3. The respondents herein filed the above mentioned suit, seeking perpetual injunction to restrain the defendants (petitioners herein), their legal heirs, representatives, agents and henchmen etc., from interfering with their possession and enjoyment in respect of the suit schedule properties. The defendants/petitioners herein filed written statement, resisting the said suit. In the said suit the defendants/petitioners filed the present I.A.1002/2013 under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure, seeking appointment of an Advocate Commissioner to find out whether the disputed land to an extent of Ac.0.08 guntas in Sy.No.756 of Miryalguda revenue village belongs to the petitioners/defendants i.e., part and parcel of Ac.6.16 guntas of land or part and parcel of plaint schedule land of Ac.3.38 guntas of the plaintiffs. Opposing the said application, the plaintiffs/respondents herein filed a counter. The learned Senior Civil Judge, Miryalaguda, by virtue of an order dated 05.03.2014, dismissed the said I.A.1002/2013.
4. Felt aggrieved by the said order, dismissing I.A.1002/2013, the present revision came to be filed by the defendants, by raising a number of grounds.
5. It is contended by the learned counsel for the petitioners that the
order of the learned Senior Civil Judge, dismissing I.A.1002/2013 is erroneous and contrary to law and if it is allowed to continue the same would occasion failure and miscarriage of justice. It is further contended that under the guise of ex parte injunction order the plaintiffs/respondents herein are trying to occupy the petitioners land to an extent of Ac.0.08 guntas which has been in continuous possession and enjoyment of the petitioners. It is further argued by the learned counsel that the learned Senior Civil Judge grossly erred in holding that DW.1 stated that he did not have any land on the Western side of the suit land and that the observations made to the said effect by the learned judge are nothing but misreading of the evidence.
The learned counsel, in support of his contentions, seeks support of the decisions of this Court in the case of VARLA RAMACHANDRA REDDY V. MEKALA YADI REDDY[1] a n d PULIPALPULA SRINIVAS VS. GANGULA VASANTA[2]
6. Per contra, it is vehemently contended by the learned counsel for the plaintiffs/respondents that the present application filed by the petitioners herein under Order 26 Rule 9 of the Code of Civil Procedure is not maintainable and it is further contended that the suit in the instant case is a suit for perpetual injunction, as such, any effort in the direction of collecting evidence by way of appointment of an advocate commissioner is liable to be discouraged and rejected. It is also contended that in the absence of any fundamental infirmity in the impugned order, the jurisdiction of this Court under Article 227 of the Constitution is impermissible for the petitioner.
7. In the above backdrop, now the question which needs to be answered by this Court is whether the Court below is justified in passing the impugned order and whether the same requires any correction by this Court in exercise of the jurisdiction under Article 227 of the Constitution of India?
8. The suit in the present case is a suit for perpetual injunction and the total extent of the suit schedule properties in various sub-divisions
of Sy.No.756 is Ac.3.38 guntas situated at Miryalaguda Revenue village and Mandal, Nalgonda District and the suit is based on title. The reasons assigned by the defendants/petitioners herein in the affidavit filed in support of the present application for appointment of Advocate Commissioner are that the plaintiffs obtained ex parte injunction and with the help of the same they forcibly removed the mud in an extent of Ac.0.08 guntas and that the plaintiffs are also trying to occupy the said extent of land. The defendants/petitioners also stated in the affidavit filed in support of the I.A., that it would be just and necessary to find out whether the said Ac.0.08 guntas of land is within their land of Ac.6.16 guntas or within the boundaries of the land of the respondents/plaintiffs i.e., within the boundaries of Ac.3-38 guntas of Sy.No.756. The plaintiffs/respondents herein opposed the said relief on the ground that even if the defendants/petitioners have any land they should prove the existence of the same and seek the relief to that extent and they cannot seek any relief in the suit filed for perpetual injunction. The plaintiffs/respondents herein also stated in the counter that during the course of evidence, DW.1 stated and admitted the lack of any land to the family on the Western side of the suit land. The plaintiffs/respondents herein also denied that the defendants have any land on the Western side of Ac.0.08 guntas as stated by the petitioners.
9. The learned Senior Civil Judge in the impugned order except stating that it is elicited in the evidence that on the Western side of the plaint schedule property, the defendants do not have any land and no purpose would be served by appointing an Advocate Commissioner, did not assign any reason for rejecting the application filed by the petitioners herein. The evidence affidavit filed in lieu of chiefexamination of DW.1 and the cross-examination, placed before this Court would not show any such admission of DW.1 with regard to the non-existence of the land to their family on the Western side of the suit land. Hence, the observation of the learned Senior Civil Judge is patently incorrect and contrary to the evidence available on record.
Since the said reason is the only reason assigned by the learned judge, this Court deems it appropriate to set aside the impugned order and remand the matter for fresh disposal to the Court below.
10. For the aforesaid reasons, the Civil Revision Petition is allowed, setting aside the order dated 05.03.2014 passed by the learned Senior Civil Judge, Miryalguda in I.A.1002/2013 in O.S.No.108 of 2008 and the I.A.No.1002/2013 is remanded for fresh disposal by the Court below in accordance with law without being influenced by any of the observations made by this Court in the preceding paragraphs. As a sequel, pending miscellaneous petitions, if any, stand disposed of. No order as to costs.
______________ A.V.SESHA SAI, J
Date: .09.2014 grk
HONOURABLE SRI JUSTICE A.V.SESHA SAI
CIVIL REVISION PETITION No.2057 of 2014
Dated September, 2014
Between:
Mohammed Asad Ali S/o. Amjadh Ali, Age 40 years, Business, R/o Reddy Colony, Miryalaguda Town & Mandal, Nalgonda District and three others.
…Petitioners
and
Mandula Yallaiah s/o Late Venkaiah, Age 50 years, Agriculture and 9 others.
… Respondents
THE HONOURABLE SRI JUSTICE A.V.SESHA SAI
CIVIL REVISION PETITION No.2057 of 2014
Dated September, 2057
grk
HONOURABLE SRI JUSTICE A.V.SESHA SAI
CIVIL REVISION PETITION No.2274 of 2014
PD JUDGMENT FOR PERUSAL
[1] 2010 (4) ALD 198
[2] 2011 (2) ALT 4
2 issues framed by the court
Whether the Learned Senior Civil Judge was justified in rejecting the application for appointment of an Advocate Commissioner in a perpetual injunction suit based on purported admissions not supported
Whether the observation that the witness admitted having no land to the western side of the suit land was contrary to evidence and required correction under Article 227.
Colour shows how this judgement treated each authority
Varla Ramachandra Reddy v. Mekala Yadi ReddyReferred¶9
VARLA RAMACHANDRA REDDY V. MEKALA YADI REDDY [1]
Pulipalpula Srinivas vs. Gangula VasantaReferred¶9
PULIPALPULA SRINIVAS VS. GANGULA VASANTA [2]
1 provisions across 1 enactments
Mohammed Asad Ali S/o. Amjadh Ali and three others
Mandula Yallaiah s/o Late Venkaiah and 9 others
A.V.Sesha Sai
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
