Dismissed

Ragula Raghu Kumar v. T.V. R. Damodara Swamy

Telangana HC2 Mar 2023CRP/3044/2022

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision petition challenging the trial court's rejection of an application for an Advocate Commissioner to survey disputed land. It held there is no infirmity in the lower court order, but kept open the option to file an application for survey after evidence is closed.

What did the court decide?

Civil Revision Petition dismissed; parties left open to file an application for survey and demarcation after evidence is closed.

Ragula Raghu Kumar Vs T.V. R. Damodara Swamy — Partition | Telangana HC (2023)

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[³¹⁶⁷ I

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY, THE SECOND DAY OF MARCH TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE A.ABHISHEK REDDY

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CIVIL REVISION PETITION NO: 3044 OF 2022

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Petition under Article 227 of lhe Constitution of lndia against the Order dt.1811112022 passed in l.A. No. 625 of 2021 in t.A.No.487 ot 2021 in O.S.no.164 of 2021 on the file of the Court of the learned Senior Civil Judge, Warangal, Warangal District, in the interests of .lustice.

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Between

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Bggglg^{R-aghqKumar,S/o. Saraiah Aged 34 years} Occ. Business, R/o H.No. 20-16-153, Fort Warangal East Warangal District.

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...PETIT]ONER

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AND

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T.V.R. Damodara Swamy, S/o Ramakrishna Swamy Aged 55 years Occ. Government Employee Rl/o H.no.3-14-589 Vinayaka nagar, road- no.5 near Loyala Public School, Kothur Street, Kumaipally, Hanamakonda, Warangal.

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Tirunagari Padmaja, Wo Damodara Swamy Aged 46 years Occ. house wife r/o H.no.3-14-589 Vinayaka nagar, road no.5 near Loyala Public School, Kothur Street, Kumarpally, Hanamakonda, Warangal.

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...RESPONDENTS/RESPONDENTS/PLAINTIFFS

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IA NO: 1 OF 2022

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Petition under Section 151 CPC praying that in the circumstances 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.164/2O21 on the file of learned Senior Civil Judge, Warangal, Warangal District, in the interest of justice.

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lA NO: 1 OF 2023

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Between

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T.V.R. l)arr< dara^{Swamy, S/o Ramakrishna Swil'tty Aged 55 years} Occ. Governr tent Employee^{R/oH no.3-14-589Vrnia'laka nagar, road no.5} near Loyala Public School,^{Kothur Street, Kurra} llally^Hanamakonda, Wa ranga l.

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Tirunagari Parlmaja, Wo^{Damodara SwamyAged 4€i y€)ars Occ house wife} r/o H.no 3-14 5Bg Vinayaka^{nagar,road no.5 near} -oyala^{Public School,} Kothur Sireet, Kumarpally. Hanamakonda,^Warangal.

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..PETITIONERS/RESPONDENTS

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AND

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Ragula Ragh r Kumar, Sio. Saraiah Aged 34^'yr-'ars Occ. Business, R/o H.No 20-'6-153, Fort Warangal^{EastWarangalDis:rir:t.}

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...RESPONDENT/CIVIL RE/ISION PETITIONER

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Petition under Section 151^{CPC praying thatin the circt.mstancesstated in} the affidavit filed in^{sr-rpportof the petition, the High Coulna!' be pleasedto} vacate the interim Orlerr^{dated 08.02.2023 in C R.P.No.3044cf 2022 and dismiss} the above Civil Flevis on^{Petition with exemplary costsin the irtere:;tof Justice.}

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Counsel for the Petil^{ioner: SRI KOWTURU PAVANKUMAR}

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Counsel for the Resg ondents:^{SRI S.LAKSHMIKANTH}

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The Court made the ollowing:^ORDER

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THE HON'BLE^{SRI JUSTICE A.ABHISHEK REDDY} CTVIL^{REVISIONPE"TITIONNo.3O44 of 2O22}

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ORDER:

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Challenging^{the orderdated 18'11'2022passed by the} learned^{Senior Civil Judgeat Warangal in I'A'No'625 of 2O2l in} I.A.No.487of2O2linO.S'No'586of2OlT,thisCivilRevision Petition^{is filed.}

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2l Vrde impugned^{order the learnedSenior Civil Judge had} dismissedtheI.A.No.625of2o2|Iiledbythepetitionerherein, who is^{arrayed as defendant in the main suit, invoking Order} XVIRulegreadwit}rSectionl5loftheCodeofCivilProcedure for appointing^{an Advocate Commissioner to demarcateand} measure^{the lands in survey Nos'160and 161/C or 165/A4 of} Enumamula^Village'

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Learned^{counselfor the revision petitioner has stated that} 3) thetrialCourtwithouttakingintoconsiderationthefactthat the^{property claimed by the petitioneris in surveynumber} 16514l^{whereas the suit scheduleproperty is insurvey} numbers^{16O and 16l} lC,^{has erroneously dismissedthe I'A'} Iiled for^{appointmentof AdvocateCommissionerto survey and} demarcate^{the said lands' Learned cottnsel has stated that}

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AAR, J

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urhen r-h€re ir; a dispute with regarcl to thc !.rc:e li,tn of thc suit schedlrle pr ol)erty and the land claimed by the p( l.itiorrer, rvhich are falling in differcnt survey numbcrs, r-,.:c. only rneLhod by which th<: s a:rre can be resolved is by ap1..;rnti:t5: an Advocate Commissior er to survey and demarcate thr: suit schedule property an,l :he land claimed by the rival party But, the trial Court has os;t sight of the said fact anc disr-risse,l the I.A. Learnecl <:ot Lnsel has also Stated that no amo Ltnt ,tf oral or documcntilr. r:vidence by the parties can rr:solve the issue and the oniy m lnner it can be resolved is i-ry ge tting the suit schedule li nd surveyed and demarceLted k,y Advocate Commissionlr. Learned counsel has statcd thrrt there is no legal embarg I for appointing an Advocatc CoinrLi55;i6ner at any stage of the ;uit and prayed to set aside thr: orclt:;.of the lower Court b1' a1lo ving the CRP.

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Per cor tra, the iearned counsel appearing on ltehaif of the respondents- rlaintiffs has stzrted that thc sr_ri.r is hled for simplicit,tr ir: junction and the burden is on tht: pla ntiffs to prove thzrt [h:y have pima facie title, physir.al pos,s,ess;ion over the suit schec u1e properfy as on the date of filing o[ the suit and irreparable 1o ;s u,ould be caused if injunction i s not granted. l,earned coun;e[ has stated that the trial is yet l(] 3(.mntence n

AAR, J

I I

the present case. That the present application is frled with the sole purpose of gathering evidence, which is not permissible under the law. lrarned counsel has stated that the trial Court has rightly dismissed the application hled by the petitioner and has stated that hling of the present I.A. is a premature one.

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Admittedly, in the present case, the trial is yet to commence. Even though the petitioner/defendant and the respondents/plaintiffs are claiming the land in different survey numbers, in a suit for permanent injunction, the burden is on the plaintiffs to prove that the suit schedule properties are located in survey Nos.160 and 160/C and that they are in physical possession of the same, as on the date of filing of the suit. Usually, unless and until the evidence of the parties is closed, the Coults refrain from appointing an Advocate Commissioner for survey and demarcation at the threshold. After going through the order passed by the trial Court, this Court is of the opinion that there is no infirmig in the impugned order warranting any interference by this Court.

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Accordingly, the Civil Revision Petition is dismissed. However, to meet the ends of justice, it is left open to the parties to hle an appropriate application seeking appointment of an

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A.AR, J

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Advocilte ( ornmissioner for survey and demztrc a t ion of the suit schedulc F roperty uis-d-ujs the land clainrccl b1. thc petiLioner herein, aft,,r the evidence of the parties is clo s,:d. On such application b,:ing hted, the same shall be considt:red on its own merits with tr-rt being influcnced by the I.A. or,C:r irr.pugned in the prescnt C RP.

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It{isce laneous petitions pending, it .1n\r sLLall stand

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closed. No r osts

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SD/., K. VENKAIAH ASSISi'TANT REGISTRAR //TRUE COPY// E--'-SECTION OFFICER

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To,

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The Serrior C vi' Judge Warangal Warangal Districr. 2. One CC: to SRl. KOWTURU PAVAN KUIMAR, Advocab^,rlrpU(ll 3. ONE CC: tO SI II. S LAKSHN4I KANTH, AdVOCAIC. [OPUC]

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Two Cl) Co ri<:s

BSK

HIGH COUF:T'

DATED:02lC312023

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ORDER

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CRP.No.304,l of 2022

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DISMISSING T'HE CRP WITHOUT COSTSi

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Ragula Raghu Kumar v. T.V. R. Damodara Swamy

Case brief

What is this about?

What did the court decide?

Ragula Raghu Kumar v. T.V. R. Damodara Swamy

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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Parties & counsel

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