Dismissed

P v. Shankarappa v Nagamma

Telangana HC23 Nov 2018CRP/2915/2018

Case brief

AI extract

What is this about?

This Court dismissed a Civil Revision Petition filed by defendants in an injunction suit. The petition challenged the Trial Court's refusal to appoint an advocate commissioner to verify the non-agricultural nature of suit property. The Court held that such appointment would amount to collecting evidence and directed the Trial Court to decide the issue based on documentary evidence.

What did the court decide?

The Civil Revision Petition was dismissed; the Trial Court was directed to record reasons on nature of land and possession upon raising of specific documentary defense.

P v Shankarappa Vs Nagamma — Property and Title | Telangana HC (2018)

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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CIVIL REVISION PETITION No.2915 of 2018

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ORDER :

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This Civil Revision Petition, under Article 227 of the Constitution of India, is filed questioning the Order in I.A.No.288 of 2016 in O.S.No.01 of 2015 passed by the Junior Civil Judge at Narayanpet dt. 05.01.2018, whereby the request of the petitioners/ defendants to appoint an advocate commissioner under Order 26 Rule 9 CPC is negated.

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The petitioners are the defendants before the trial Court. The respondent herein/ plaintiff filed suit for injunction simplicitor claiming that he is in possession and enjoyment of the suit schedule property as on the date of filing suit while claiming that it is an agricultural land; whereas the petitioners herein/ defendants filed Written Statement denying the nature of the land while contending that there are tombs, cattle shed, garbage tank etc ., and therefore, appointment of advocate commissioner to find out the physical features of the schedule property to establish that the suit schedule property is not an agricultural land and thereby the plaintiff/ respondent is disentitled to claim perpectual injunction and requested to appoint an advocate commissioner.

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The trial Court by Order dt.05.01.2018 dismissed the petition holding that granting of such relief would amount to collection of evidence.

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Aggrieved by the Order impugned, the present Civil Revision Petition is filed on various grounds, mainly on the ground that if the Commissioner is appointed, it will be helpful to the trial Court to decide the real controversy between the parties though it is a suit for injunction simplicitor, but the trial Court did not deal with the issue in right perspective and committed an error in dismissing the Petition.

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During hearing, Sri Bajrang Singh Thakur, learned counsel for the petitioners/ defendants reiterated the contentions urged in the petition while demonstrating that in case the advocate commissioner is appointed, the report of the commissioner would certainly disclose nature of property i.e., the suit schedule property is not an agricultural land and it is only a land covered by tombs, c attle shed, garbage tank etc., and the right of the plaintiff would be defeated and requested this Court to appoint an advocate commissioner to note down the physical features of the schedule property.

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Learned counsel for the respondent/ plaintiff supported the Order in all respect and requested this Court to dismiss this Revision.

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The suit is filed by the respondent/ plaintiff for injunction simplicitor; whereas the petitioners herein/ defendants set up a plea in the Written Statement that as per the certified copy of the pahani for the year 1981-1982, the suit schedule property is in Sy.No.5 in an extent of Ac .3.22 guntas and the name of the plaintiff was recorded as pattader and his possession column was recorded as “ padava i.e., fallow. Further, on perusal of the certified copy of Pahani for the year 1984-85, it reveals that the land in Sy.No.5 in an extent of Ac .3.22 guntas is classified as “ Dodlu” . Further, a perusal of C.C of pahani for the year 1994-95 in column No.13, it was mentioned as “ pashuvula Meetha Dodlu” i.e., cattle sheds. Therefore, the land in dispute is not an agricultural and thereby the question of plaintiff continuing in possession of the suit schedule property does not arise and requested this Court to dismiss the petition on the ground also.

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The petitioners/ defendants contends that the schedule property as per the revenue records i.e., pahanis for the different years mentioned in para No.11 of the Written Statement, is not an agricultural land and the

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land is described as ‘ Padava, dodlu and Pashuvula Meetha Dodlu ” . When the petitioners themselves admitted that it is not an agricultural land, based on documentary evidence, the purpose of appointment of advocate commissioner is only to elucidate those facts, but that is not a substantive evidence. When the suit is filed for injunction simplicitor, initial onus of proof is on the plaintiff to prove that he is in possession and enjoyment of the property as on the date of filing suit and his rights are infringed or invaded by the defendants and the plaintiff cannot take advantage of the weak defence set up by the defendants in Written Statement and the plaintiff has to establish his possession independently. Hence, it is for the plaintiff to establish his possession over the suit schedule property and then only, the onus of proof will shift on the defendants to prove their possession by rebutting the evidence of the plaintiff. Therefore, such appointment of advocate commissioner for the purpose of noting down the physical features, which is not germane to deice the real controversy, would amount to appointing an advocate commissioner for collection of evidence.

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This Court had an occasion to deal with similar issue in Sarala Jain and others v Sangu Gangadhar and others¹ and laid down certain parameters to consider the application for appointment of advocate commissioner, which are as follows:

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1. Total pleadings of both parties;

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1. Relief claimed in suit;

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Appointment of advocate commissioner for specific purpose at interlocutory stage shall not amount to grant pre-trial decree; and

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Necessity to appoint advocate commissioner to decide real controversy between parties.

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1 2016 (3) ALD 197

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In the present case on hand, the appointment of advocate commissioner in a suit for injunction simplicitor and would amount to collection of evidence and therefore, the commissioner cannot be appointed. The petitioners/ defendants are permitted to raise such specific contention based on documentary evidence i.e., the pahanis filed for different years mentioned in para No.11 of the Written Statement or any other documents, during trial, and on raising such contention, the trial Court is directed to record its reasons as to the nature of the land and also the possession as on the date of filing the suit. Consequently, this Revision Petition is liable to be dismissed.

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Ac c ordingly, this Civil Revision Petition is dismissed.

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As a sequel, miscellaneous applications pending, if any, shall stand closed.

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________________________________________ M. SATYANARAYANA MURTHY, J Dat e: 2 3 -1 1 -2 0 1 8 eh a

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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CIVIL REVISION PETITION No.2915 of 2018

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Dt. 23-11-2018

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eha

P v. Shankarappa v Nagamma

Case brief

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P v. Shankarappa v Nagamma

Case brief

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