Allowed

A.Vimala v. Smt. Padma

Telangana HC12 Sept 2014CRP/2977/2014

Case brief

AI extract

What is this about?

The Hon'ble High Court allowed a Civil Revision Petition wherein the lower court had dismissed a prayer to appoint an Advocate Commissioner and surveyor to identify and demarcate disputed land in Suit Nos. 14 and 15. The Court held that while an Commissioner cannot verify physical possession, they can verify land identification via survey when the property is open land and descriptions vary betwee

What did the court decide?

Civil Revision Petition allowed; lower court directed to appoint Advocate Commissioner assisted by a competent Surveyor to identify and demarcate land in Survey Nos. 14 and 15.

A.Vimala Vs Smt. Padma — Partition | Telangana HC (2014)

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HON’BLE SRI JUSTICE CHALLA KODANDA RAM

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C.R.P. No.2977 OF 2014

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ORDER:-

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The Civil Revision Petition filed against the Order dated 31.07.2014 in I.A.No.1419 of 2013 in O.S.No.451 of 2009 passed by the Principal Junior Civil Judge, Nizamabad.

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The Revision Petitioner is the plaintiff in the suit. Suit has been filed in relation to the dispute with regard to the property in Sy.No.14. For the purpose of localisation, I.A.No.1419 of 2013 has been filed with a prayer as follows:

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“As such Advocate Commissioner may be appointed to verify the said fact by taking the assistance of Surveyor or Survey and Land Record Office, Nizamabad.

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THEREFORE it is prayed to appoint Advocate Commissioner to verify the actual possession of the respondents, in all the suits, whether they are in sy.No.14 or in Suit land which is part of Sy.No.15 situated at Mubaraknagar Village of Mandal & Dist. Nizamabad, and also he may be directed to note the construction of structures erected by the Respondents whether in Sy.No.14 or in the suit land which is part of Sy.No.15 by taking assistance of Surveyor or Survey and Land Record Office, Nizamabad by demarcating Sy.No.14 and 15 in the interests of justice and equity.”

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There is no counter affidavit filed by the respondents opposing the said prayer. On the other hand, learned Judge has also recorded that the counsel for the respondents reported no objection for allowing the petition. Learned counsel for the petitioner would submit that the Court below erred in dismissing the I.A. without appreciating the true scope of the petitioner and he placed reliance on the judgments reported by this Court in Donadulu Uma Devi Vs. Girika Katamaiah @ Basaiah and

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other s^[1] and Nambada Varaha Narasimhulu Vs. Karanam

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Dalamma and other s^[2] . The learned counsel for the petitioner also would submit that the claim of the plaintiff is that her possession is in Sy.No.15 of Mubaraknagar, Nizamabad and the defendants claim is with respect to Sy.No.14 of Mubaraknagar (V). This aspect can only be resolved by getting survey done with the help of the Town Surveyor. This Court in the above referred judgments has precisely decided the said issue.

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A perusal of the plaint and the written statement would go to show that the dispute is with respect to the identification of the property which only can be resolved through survey as the property is open land. However, the relief as claimed in Interlocutory Application cannot be granted by this Court as it is not possible for the Advocate Commissioner to verify the actual physical possession of the plaintiff or defendants, which needs to be established by the respective parties by leading evidence in conformity with their pleadings. Inasmuch as, the identification of the property by an official surveyor would help in finding the property of the parties in its entirety as held by this Court in Donadula Uma Devi’s Case (1 supra). Appointment of Advocate Commissioner, in such circumstances is permissible. In that view of the matter the Court below erred in dismissing the relief claimed by the revision petitioner.

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Accordingly, the Civil Revision Petition is allowed directing the Court below to appoint an Advocate Commissioner assisted by a competent Surveyor to identify and demarcate land in Survey Nos.14 and 15 with particular reference to that part of the land, which is the subject matter of the suit and submit to the Court.

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Accordingly, the Civil Revision Petition is allowed with the above observation, at the admission stage. No order as to costs. Miscellaneous petitions, if any, pending shall also stand closed.

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____________________________ CHALLA KODANDA RAM, J

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Date: 12.09.2014. Ssv

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[1] 2013 (2) ALD 86

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[2] 2014 (4) ALD 610

A.Vimala v. Smt. Padma

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A.Vimala v. Smt. Padma

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