The High Court dismissed a civil revision petition challenging the dismissal of an application for appointment of an Advocate Commissioner to measure land. The Court ruled the order was correct as Revenue Authorities had already surveyed the land via a panchanama, making further survey unjustified.
Civil Revision Petition dismissed with no order as to costs.
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.
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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
TUESDAY ,THE FIRST DAY OF AUGUST TWO THOUSAND AND TWENTY THREE
PRESENT
THE HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU
CIVIL REVISION PETITION NO: 1923 OF 2023
Petition filed under Article 227 of the Constitution of lndia, aggrieved by the Order dated 08 06.2023 passed in l A.No. 162 of 2A23 in O S No. 08 of 2019 on the file of the Additional Junior Civil Judge. Muiugu.
Between:
...PETITIONERS/ PETITIONERS/DEFENDANTS
AI'ID
Boini Sudhakar, S/o. Sammaiah, aged 45 years, Occ. Agriculture. R/o Yellareddioally Village, Venkatapur. Mandal, Muluqu District
...RESPONDENT/ RESPONDENT/PLAINTIFF
l.A NO: 1 aF 2A23
Petition under Section 151 of CPC praying that in the crrcumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in OS No. 08 of 2019 pending on the file of Hon'ble Additional junior Civil Judge, Mulugu in the interest of justice.
Counsef for.Petitioners : Sri JITHENDER RAO VEERAMALLA
Counsel for the Respondent : M/S. M. SALEEM
The Court rnade the following: OROER
THE rI()N( iaABLE SRI JUSTICE SAMBAS;M ll,'rO IIAIDU
CI/. ,, REVISION PETITIONJ,IO.194} Q\ :II.,2.
ORf)ER :
his Civil Revision Petition has ireen filed under Arlr le '227 ol the Constitution of I r,:lia, being 1n aggr-ieved 1' the Order dated 08.06.1202:l passed I.A.No.762 ot 2023 in O.S.No.8 of 2Cl9 b'r learned Additionai J rnior Civil Judge, Mulu11r, ruher:under the applic t on filed by the petitioners/d,:fendants seeking tc appoint an Advocate Commir;siiorrer for measuring the schedule mentioned prope'riv w.th the help of Gorrnment SLtrve1,o1, was disrrrisst:<1.
2 . :irrned counsel for the petib o aels has contended hat the Court below has feLiled, tt.r e.<ercise thejuriscli, -i,)n vested in it ald failed to t:or sicler the case' of' the petitioners in a correct perspe,l -il/e, in the light of the principles laid down in the der::ded cases.
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The petitioners have claimed that the Courtbelotr ought to have appreciatedthe object of local inspection under Order XXVI Rule 9 of C.P.C.is to elucidate information only but not otherwisc.The pctitioners 1lt have claimed that in view of thesettled lau", situations where there is controversy about the identification of the location ormeasurementof the Iand, local investigation shouldbe done at early stage so that the parties would awareol the reportliled by the Advocate Commissioner.However, in thc case on hand, the respondent/ptaintiffhas given boundaries of the land owned by thepetitionersin Sy.No.61/A/cl though their land is inSy.No.7llA. To clear the said an Advocate discrepancy appointmentof Commissioner for obtainingthe measurement5 of the land with the help ofthe Government Surveyor is required. But the Court belowfailed to consider their claim and wrongly dismissed thepetiiion'videthe Order impugned in this CivilRevisionPetition.
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Thereforr' :;ought lor set aside the imprrlne,J Order :rnd altpo r1 an Advocale Commissionc.r_
:i. l,.ra rd lear.ned counsel apltezui:_rpl f,tr both the pa rticl i)eruserl the record.
cleterntin zt t rr.r is:
Whr:r, er- the Orcler passed by the Court b,:lovr., is incorr,ct anrl lialtle to be set asi,le aLrrcl q hether th erc r s necL-sslt-V to appoint arl Advocate Crtmrt ssioner as sought by the Pr:tilioners hereir'
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the schedule annexed to the plaint, schedule mentioned propcrty l-ras been identified with specific bounda:-ies. The petitioners herein have filed the above referrcd interlocutory application under Order XXVI Rule 9 of C.P.C. with a prayer to appoinl an Advocate Commissioner to measure schedule mentioned property with the help of the Government Surveyor and that they waret to get the schedule rnentionecl property identified by specific boundaries.
application by way of liling counter stating that the schedule mentioned property u,as already surveyed by the Assistant Director, Survey and Land Records and panchanamJwas conducted in the presence of panchas t and that a report was submitted to the Revenue Authorities and the sarne were marked as Exs.A.4 to A. 12. Thereby, there is no necessity to appoint an Advocate Commissioner and it also appears from the
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record tlli, the pctitioners herein have r:lrrimcd that thev irre rlrsolutc o,/ners in respe.ct of' A,:.02.03 Guntas ir Sr,.No.6c)/A/C situated at './t nl..atapur Viilage an, hat thc., olttzrined Pattadhzrr Pirss Book. When the'r spondcnt/plaintiff tried to int<:r'lele '"r,ith their poss ssion on 15.01.2O19, thel'harr: liled the suit in O.t NIo.S of 2019 lor perpctual injuncti()n and fileci I.A.N Fi of 2019 lor temporary inju-rr:lion and the obtirined (.x parte. injunction a6izriit sl respondetr/ pl:rint i ll-. FIou,errer, l lt both thr' suits the propertv s own ir-r thc plaint schedules iu'e one ald the sarne t <t. ept tht' surverr numbers. Therr:fi>re, there is necessi ,, to zrppoint Advocate Ct>mnr srsioner to identilv th, l)ropert/. But the Court belovr Lrad heard both tl-re -'rrrned counscl and dismisse c the said application
7 , s per the afficlavit filed in sul)l)ort of the above refer cC applic:rtion before the Court Lrelc,w and
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accorcling to the impugned Order, it seems that thc petitioners herein have fiied the suit vide O.S.No.S of 2Ol9 seeking interim injunction. The petitior-rers have ciaimed that tl-rcy have got alienated the propertv in Sy.No.69/A/C. The respondent herein filed O.S.No.B of 2O 19 against lhe i:etitioners herein in respect ol Ac.02.00 cents of land in Sy.No.7O/A. The petitioners herein havc clarimed that though tu,o survey numbers are shou,n in the above referre d trvo suits, the boundarics shorvn to the lald are one and the same Thereby, the petitioners sought for appointment of an Advocate Commissioner for identification/localizing the prope rty.
B. According to the counter filed by the respondcnt/plaintiff, it shows that already the Assistant Director, Survey and Land'Records had conducted the sur-vey on the very same propelty and to that effect the said survey reports were filed vide
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Exs.A.14 't 4.12. Since thc main suit was filecl bv the responcler lor perpetual injunction in rr:sipecl. of the specific pr rpert-y urithin the boundarics slo.w,n in the .schedule ; re'ntionecl property, vr.,hich was .ll,ed bv the responclen to establish the claim anci the 1_retttioners need not c s]lrove their contention. It may lre. tr.:e that they have lrezrdy filed suit and as per their ()wn cl 'm alreadv a enlporan/ injunction was grant,lcj. ir-i their favour.
h,: partie s in a suit for perpr:tua,l injunction are under 1 x' obligation to prove their r:lairn abcut the possesslon_ they cannot seek the appointnrr:nt of an Advocate C ,r,rmissioner to establish their pt.,ss:ssion on a particr lerr property. When the suit itscll ,*-as filed by the resl ,rrrdenl/plaintiff. the pelitioners rree d not prove the , rlrectness or otherwise of the property. They can dr 't1. the claim of the respondent/p,L:dntiff by way of crosr .examination or by producing t:rs relevant
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record.TheY cannot seek permissiort to delegate the power to theAdvocateCommissionerto verifywho has possession overthe schedule proPerty 'in addition to that alreadyExs.A'4 toA'12 records 9re available' Apart fromthis, even if an Advocate Commissioner is appointed,hecannotidentify theproperty and necessalilyhe has to depend on the servicesof the Surveyor.In the light of the claim of the respondent already asurvey had been conducted' thereby'the request ofthe petitioners for another survey need not be considered.
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1 1. :r the light of thc discttssiontr a:le srt;rra,
this Civil [,rvision Petition is ciismissec. Tlrrrr': shallbe
no order a to costs
Pend rg1,. misceilaneous applicaticns, iirrn'z, shall
stand clos, I
S,:l/- r.V.S. PRASAD, I A$S;ISiTANT REGISTRAR I
/iTRUE COPY//
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SE3TION OFFICER
To,
1 The Additioli:l JuniorCivilJudge' Mulugu'
2 One CC to:;ri JITHENDER RALr VEERAMALLA'Advc'cateOPUCI
3 One CC toI r/S M SALEEM,Advocate [OPUC]
NJB
HIGH COUF T
SSRN.J
DATED:01 ,t( l;202'3
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CIRDER
CRP. No.192 I of 2023
DISMISSINTS l', : CIVIL REVlSlOtq PETiTION
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3 issues framed by the court
Whether there is any ground to set aside the order dismissing the application for appointment of an Advocate Commissioner for measuring identified property.
Whether an Advocate Commissioner needs to be appointed to verify possession and identify property boundaries already surveyed by Revenue Authorities.
Whether a party in a suit for perpetual injunction would need to seek appointment of a Commissioner to prove possession when they have already an ex parte injunction.
1 provisions across 1 enactments
Guvva Ramaswamy and others
Boini Sudhakar
SAMBASIVA RAO NAIDU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
