Dismissed¶69

M/s Akshara Constructions v. K. Buchaiah

Telangana HC6 Oct 2025CRP/1192/2024

Case brief

AI extract

What is this about?

Telangana High Court, CRP No.1192 of 2024, Renuka Yara J., 06.10.2025: Appointment of Advocate Commissioner under Order XXVI Rule 9 CPC upheld in a suit for declaration of title and recovery of possession alleging encroachment; Shanmugathai v. Kamalammal relied on; Gangavarapu Hanumantha Rao @ Anjaneyulu Battigiri (2007 (6) ALT 633) distinguished as confined to temporary-injunction applications in perpetual-injunction suits; Mallikarjuna Srinivasa Gupta referred; revision against trial court order dated 28.03.2024 dismissed; no costs.

What did the court decide?

In a suit for declaration of title and recovery of possession, whenever there is an allegation of encroachment, an Advocate Commissioner can always be appointed, as held by the Madras High Court in Shanmugathai v. Kamalammal. ¶45

M/s Akshara Constructions Vs K. Buchaiah — Writ and Judicial Review | Telangana HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶69

Issue for consideration

Whether the trial court's order dated 28.03.2024 in I.A.No.50 of 2024 allowing appointment of an Advocate Commissioner under Order XXVI Rule 9 CPC to note down the physical features of the suit schedule property by local inspection ought to be set aside in revision, given the alleged overlapping of survey numbers and boundaries. +1 more

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Court's answer

This Court sees no infirmity in the order passed by the learned trial Court and there are no grounds to interfere with the same; accordingly the Civil Revision Petition is dismissed confirming the impugned order.

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Ratio / Principle

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Key takeaways

In a suit for perpetual injunction, when an interlocutory application is filed seeking temporary injunction, relief of appointment of an Advocate Commissioner cannot be granted to ascertain possession - the legal ratio laid down in Gangavarapu Hanumantha Rao @ Anjaneyulu.ratio¶45
The Gangavarapu situation is not applicable to the present case, as this suit is filed for declaration of title and recovery of possession with an allegation of occupation of the suit schedule property; hence the appointment of the Advocate Commissioner to note the physical features is sustainable.ratio¶45

Detailed headnote1 paragraphs

Civil Revision Petition under Article 227 of the Constitution directed against the order dated 28.03.2024 of the learned II Additional District Judge, Medchal Malkajgiri District at Medchal (trial Court), whereby I.A.No.50 of 2024 in I.A.No.365 of 2022 in O.S.No.833 of 2022 was allowed under Order XXVI Rule 9 CPC appointing an Advocate Commissioner to note down the physical features of the suit schedule property (open land admeasuring Ac.0-36 guntas in Sy.Nos.435/part & 464/part, Bowrampet Village) by local inspection. Held, dismissing the revision: in a suit for declaration of title and recovery of possession whenever there is an allegation of encroachment, an Advocate Commissioner can always be appointed, as held by the Madras High Court in Shanmugathai v. Kamalammal (relied on); the ratio in Gangavarapu Hanumantha Rao @ Anjaneyulu Battigiri (pressed by the revision petitioner) barring appointment of an Advocate Commissioner at the temporary-injunction stage of a perpetual-injunction suit to ascertain possession is not applicable, since the present suit is for declaration of title and recovery of possession with an allegation of occupation of the suit schedule property. Seeing no infirmity in the trial court order, the Court dismissed the Civil Revision Petition confirming the impugned order dated 28.03.2024, with no order as to costs; miscellaneous applications closed. (Mallikarjuna Srinivasa Gupta v. K. Shashirekha referred on behalf of the respondent.)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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MONDAY, THE SIXTH DAY OF OCTOBER TWO THOUSAND AND ru/ENTY FIVE

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PRESENT

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THE HONOURABLE SMT JUSTICE RENUKA YARA

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CIVIL REVISION P ETITION NO i 1192 0F 2024

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Petition under Article 227 of the Constitution of lndia, aggrieved by the Order Dated 28.03.2024 in t.A.No 50 ol 2024 in lA.No.365 of 2022 in O.S. No.833 of 2O22 on the fite of the ll Additional District Judge, Medchal Malkajgiri District at Medchal.

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Between:

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M/s AKSHARA CONSTRUCTTONS-, Viila No.25, Aparna Orchids, lzath Nagar, Madhapur, Hyderabad Rep by rts Managing partndr, p V S N Rdjt

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...Revision Petitioner/RespondenUDefendant

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AND

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K BUCHAIAH, S/o. Chandrasekharaiah, Aged about 40 years, Occ. Housewife, R/o. Plot No. 63/4, Fourth Ftoorl Raghavendra (iijyiin,^-7tn Phase. KPHB Colony, Kukatpally, Hyderabad.

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lA NO: 1 OF 2024

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...RespondenUPetitioner/plaintiff

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Petition under section 1s1 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to STAY all further proceedings in t.A NO. 50 of 2024 in LA NO. 365 of 2022 in O.S.No.833 of 2022 on the fite of the il Additionat District Judge, Medchat Malkajgiri District at. Medchal pending disposal of the above revision.

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Counsel for the Petitioner: Mr. ANNAREDDY ARAVINO REDDY, Advocate

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Counsel for the Respondent: Ms. VEDULA CHITRALEKHA, Advocate

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The Court made the following: ORDER

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THE HONOURABLE^{SMT. JUSTICE RENUK'\ YARA} CIVIL^{REVISION PETITIO N No.l192 ol 21124}

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ORDER:

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I{eard Sri A.^{Aravind Reddy' Iearned counseI lbr thc revistot.t} petitioner and^{Ms. Vedula Chitratekha'learned counselftrr tllc rcspondertt'} Perused^{the entire record.}

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This revision^{petition is Illcdaggrieved by rhc order dated} 18.0i.1024inl.A.No.50^{of 2024 inIANo'365ol 2022 nOSNo8jiof} 2022onthefileofthelearncdllAdditionalDistrictantlscssi<lnsJudge, Medchal Malkaigiri^{at Medchal, ('trial Court')' wherein arr rrpplicatiorrfilcd} under Order XXVI^{Rute 9 olC'P'C to appoint an Adv()errtc( otttniissionct'} has been allowed^{to notedown the physical fleatures ol't]restrit schedule} property by making^{local inspcction'}

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3,Thebrieffactsofthecasearcthattherespondent.plairrtil'l.llledsLrit for declaration^{and recovery ofpossessionagairrst thc revisiotl} petitioner/defendant^{rvithrespectto the suit schedule prol)crty consisting ol'} open land admeasuring^{Ac'0-36guntas in Sy'Nos'435/l'art& 464/Panol} Bowrampet^{Vitlageand GratnPanchayat, Qutbullapur Nlandalnorv (iandi} MaisammaMandal,RangaReddyDistrictnow]Vledclral.Malkajgiri District. The^{said land is boundedby land in Sy.No.471 irr North, by land}

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RY.J c.Rt, 1192 2024

of'Suryodaya Homes Private l-irnited in South, by land belonging to V Narayana Raju on East and by land in part of Sy.No.464 and 435 in West. The respondent claims to bc the owner and possessor of the above said land having purchased thc same under registered sale deed frorn the erstwhile owner. He was in peaceful possession and while things thus stood, the revision petitioner in the year 2000 approached respondent stating that they being largest firm are intending to construct apartments and demanded to sell the suit schedule property and that they are ready to purchase the same at any cost. The respondent did not agree to sell suir schedule property as he has no need to alienate the same. At that tinte, the revision petitioner liled application before the authorities ol IIMDA seeking layout plan and the respondent submitted an objection letter dated 08.10.2020, not to approve and release the layout because the suit scl-redule property is also included in their requisition. The HMDA dcclincd to approve the layout as there was dispute about possession. Thercattcr, the revision petitioner started visiting the respondent once in a fortnight pressurizing him to alienate the suit schedule propeny and on 2l .02.2022, the respondent erected a fencing with tin sheets cncircling his land by encroaching the suit schedule property, on raising objection and request to removc the same, the revision petitioner threatened the respondent with help of his subordinates ..- o_ond labour men. In that context, a criminal clsc is rcsistercd belbre Police

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t{'.1 ('l{l'Il92 l(rl+

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Station Dundigal^{with a request to take necessary actiotr' [)tte to t'too-} action of the^{police, the respondentfiled the prescnt 'ruit lirr cleclarationol} his orvncrship,^{recoveryof possessionand for costsln tlre said suit' lrc} tiled I.A.No..lrr5^{ol' l0llsceking temporaryinjunctiorr irs thc rc\ isi\r'l} petitioncr is^{raising constructions in the suit schcdulepropcrt)''ln the slicl} petition. the t.A.^{under revision is filed lor appointmrrrrt of Advocate} Commissioner^{and the same was allowed by way of imptrgnedordel u'itha} direction to note^{dow,nthe physical features of the suit sclledttle propcrlv} by making local^{inspection.Aggrieved by the same, the prcscntre'r' isiottis} prc lerred.

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[n the grounds of^{revision, it is pleaded that thc survclnrtubcrs} claimed by^{thc revision petitioner and the survey numbcrs clairnedby the} respondent are^{dit'lerent except Sy'No'464, which is o} ''crlapping'^I'he impugned order^{is passedto note down the physicalt.eatlrl es cll the pr.opcr'tr,} bytailingtounderstandthattherevisionpetitionerisalsoholdingpropcrt)' inthesaidsurueynumberwithinspecificboundaries..[.hcinrpugrredortle'r has rel-ercnce of the^{admission of the revisionpetitio|cr aboutmaking} construction as the^{interim injunction order obtainedby tlre responden[$ as} not extended. It^{is ptcaded that the injunctionorder was ohtained lbr cntirc} land to an^{extent of Ac.2-36 guntas belongingto tlrc verrdorol'lhe}

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RY.J cRP 1192 2024

respondent under the garb of the suit schedule property which is only Ac.036 guntas. It is further pleaded that the boundaries mentioned in the suit schedule propefty are the boundaries of the vendor of the respondent and therefore, it is difficutt to note down the physical features. The identification of the suit schedule property would be difficult as there is overlapping of survey number and the boundaries are that of the vendor of the respondent and the report submitted would mislead the Cour1. It is lastly pleaded that the respondent filed the I.A. under revision only to fill up the lacuna in his case. f'herefore, prayed that the impugned order be set aside by allowing the present C.R.P

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Learned counsel for the revision petitioncr argued that there IS overlapping of Sy.No.464 with respect to the property owned by the rev tston petitioner as well as the respondent. [t is argued that the respondent has given boundaries of land to an extent of Ac.2-36 guntas including the property of vendor of the respondent, but not the boundaries o1' land to an extent of Ac.0-36 guntas, which is owned by respondent Irurther, according to the revision petitioner no fault is committed by raising any construction in their property as there is an interim injunction order in their favour. He relied upon the judgment of this Court in the case v of' Gangavarapu Hanumantha Rao @ Anjaneyulu Battigiri

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R",I CRP 1192^2(rl4

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Ramulut, wherein^{it is held that the Commissioner shouldnot be appointcd} as a matter of^{routine at initiat stagein applicationfor tem poraryinjunction} as the possession^{overthe property has to be decided on appreciation of tl-re} evident c lct^{in hi lhe} Partics.

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Learned counsel fbr the^{respondent argued that the Advocate} Comrnissioner^{is sought to be appointed for notingdown the physical} t'eatures in thc^{suit scheduiepropeftyand not for ascertaininetire} possession of the^partie s.^{[t is argued that the leamed trial court has notc-d} that thc main^{suir is fited seeking declaration of title and recovcryol} possession with respcct^{to the land which is occupied by the revision} petitioner. There is^{grievanceabout the revision petitioner rnaking a} construction over^{thc property belonging to the respondontand therclbre-,} the court hetd^{that there is need to note down the physical featurcs.} Further, reference^{is made to the judgmentof. this court in Mallikarjurra}

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Srinivasa Gupta^{v. K. Shcshirekha2, whereinan Advoc,lteClommissioncr} was appointed ltrr^{noting down the physicalfeatures of thc propertl'} therein.

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As per the record, the main^{suit is filed seekingdeclaralionof titlc} and recovery of^{possessionof the propertyencroacherlby the rcvision}

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t 2oo7 {6)^{ALr 633} 2006 (3) ALD 362

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.- \ -c'I .l

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RY..I cRP 1192 2024

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petitioner. [n a suit for declaration of titlc and recovcry of possession u,henever there is an allegation of encroachment, an Advocate (.ommissioner can always be appointed as held by Madras High Court in Shanmugathai v. Kamalammalr. However, an Advocite Commissioner may not be appointed in a suit for perpetual injunction when the purpose is , to decide the possession over the suit schedule property. In a suit for perpetual injunction, ryhen a4 interlocutory application is fited seeking tcrnpol'ary injunction, relief of appointment ol Advocate Commissioner cannot be granted to ascertain possession as per the legal ratio laid down in (iangavarapu Hanumantha Rao @ Anjancyulu (supra), the said situation is not applicable to the present case as the suit is filed for declaration of title and recovery of possession and there is allegation of occupation of suit schedule property by the respondent. The /rs between parties can be decided only by ascerlaining as to whether there was encroachment of suit schedule property and whether there are constructions raised by the revision petitioner in the property belonging to the respondent. As such, this Court sees no infirmity in the order passed by the learned trial Court and there are no grounds to interfere with the same.

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il. In the result, the Civil Revision petition is dismissed confirming the

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rrr.dcr dated 28.03.2024 in I.A.No.50 of 2024 in I.A.No.365 oI'2022 in

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'rvrANU/rN/031sl2017

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It-..r cRP I 192 201,1

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tII t i

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