Allowed

M. Sidharth, v. N. Kistamma

Telangana HC20 Nov 2014CRP/4001/2014

Case brief

AI extract

What is this about?

Civil revision petitioner, the defendant, challenged the Junior Civil Judge’s order appointing an advocate commissioner to demarcate disputed land in a perpetual injunction suit. The High Court allowed the revision, holding the appointment exceeded the suit’s scope and improperly affected third-party rights.

What did the court decide?

The order dated 02.06.2014 in I.A.No.324 of 2013 appointing the advocate commissioner is set aside and the application is dismissed.

M. Sidharth, Vs N. Kistamma — Property and Title | Telangana HC (2014)

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HON’BLE SRI JUSTICE A.RAJASHEKER REDDY CIVIL REVISION PETITION NO.4001 OF 2014

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O R D E R :

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This revision petition is filed by the defendant in the suit against the order dated 02.06.2014 passed in I.A.No.324 of 2013 in O.S.No.9 of 2013 under Order XXVI Rule 9 of the Code of Civil Procedure by the Junior Civil Judge, Shadnagar, whereby the Court below appointed Advocate Commissioner to demarcate the land in Survey No.745 and also the land in Survey No.743 of the defendant and fix boundaries to the suit schedule land admeasuring Ac.01.32 cents and submit report along with map.

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The petitioner herein is the defendant and respondents herein are plaintiffs in the suit.

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The facts which are necessary for disposal of this revision are:

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The respondents/plaintiffs filed suit O.S.No.9 of 2013 for perpetual injunction in respect of the suit schedule property admeasuring Ac.01.32 cents in Survey No.745 situated at Burgul Village, Mahaboobnagar Mandal and District. In the said suit, the plaintiffs filed I.A to appoint advocate commissioner to demarcate the land in Survey Nos.745 and 743 and fix boundaries as the land belonging to the plaintiffs is quite separate and the defendant is denying the existing physical features of the suit land and also disputing the boundaries of suit schedule land.

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The petitioner/defendant filed counter in the said IA stating that the dispute is not to the entire extent of land in Survey Nos.745 and 743, as such it is out of scope to appoint an advocate

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commissioner and in a suit for mere injunction, the plaintiffs filed the application for appointment of commissioner instead of proving their possession by producing required evidence which amounts to collection of evidence and to cover up lacunas under the guise of fixing boundaries. Therefore, the IA is liable to be dismissed.

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The Court below allowed the impugned IA only on the averment of the plaintiffs that the suit land is situated adjacent to the land purchased by the defendant in Survey No.743. In a suit for injunction, the plaintiffs have to prove that they are in possession of the suit schedule land as on the date of filing of the suit. Normally, an advocate commissioner is not appointed in a suit for injunction, but there is no bar in appointing advocate commissioner in a suit for injunction. The trial Court only said that appointment of advocate commissioner is necessary for localization of suit schedule land. The advocate commissioner is appointed to demarcate the entre land in Survey Nos.745 and 743 and to fix boundaries of suit land admeasuring A.01.32 cents.

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The plaint schedule land is shown in Survey No.745 and the defendant’s land is not shown as one of the boundaries to the suit land. Though in the suit map Survey No.743 is shown as southern side of Survey No.745 and the plaintiffs only want to locate their suit schedule land by way of appointment of commissioner in a suit for injunction. The plaintiffs themselves are not sure about the location of schedule land and they want to gather evidence through advocate commissioner for identifying the suit land. The pleadings and the schedule annexed to the plaint are contradictory. The averments in the plaint also show that the suit land is not adjacent to Survey No.743. The Court below passed order for demarcating the land in Survey No.745 and 743 which is beyond the scope of suit and that exercise may effect right of third parties.

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In view of above facts and circumstances, the discretion exercised by the Court below in appointing the advocate commissioner is not proper.

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Accordingly, the revision petition is allowed setting aside the order dated 02.06.2014 passed in I.A.No.324 of 2013 in O.S.No.9 of 2013 under Order XXVI Rule 9 of the Code of Civil Procedure by the Junior Civil Judge, Shadnagar and the IA is dismissed. There shall be no order as to costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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______________________ A.RAJASHEKER REDDY, J

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20.11.2014 kvrm HON’BLE SRI JUSTICE A.RAJASHEKER REDDY

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CIVIL REVISION PETITION NO.4001 OF 2014

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DATE: 20.11.2014

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KVRM

M. Sidharth, v. N. Kistamma

Case brief

What is this about?

What did the court decide?

M. Sidharth, v. N. Kistamma

Case brief

What is this about?

What did the court decide?

What the court decided

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