S. Srinivas Rao Vs M. Venkata Singaiah — Writ and Judicial Review | Telangana HC (2025)

S. Srinivas Rao Vs M. Venkata Singaiah — Writ and Judicial Review | Telangana HC (2025)

What the court decided

AI extract

Outcome

Civil Revision Petition allowed; order dated 03.08.2021 in I.A.No.118 of 2021 in I.A.No.47 of 2021 in O.S.No.314 of 2021 set aside; trial Court directed to appoint any Senior Advocate Commissioner from the panel of lawyers by fixing appropriate fees as prevalent and issue a warrant directing the Advocate Commissioner to note down the physical features of the suit schedule property along with the boundaries; the Advocate Commissioner may take licensed assistance of a Surveyor if required; the Advocate Commissioner shall not take note of who is in possession of the lands; no order as to costs; miscellaneous applications, if any, shall stand closed.

Issue for consideration

Whether an Advocate Commissioner can be appointed in a suit where the relief sought is only for bare perpetual injunction, for the limited purpose of noting down the physical features of the suit schedule property. +1 more

Court's answer

An Advocate Commissioner can be appointed for noting down the physical features and boundaries of the suit schedule property; there being no quarrel with the proposition in the citations relied on by the petitioner, the Court found that no prejudice would be caused to the respondents by such a limited appointment.

Ratio / Principle

The Court has discretionary power for appointment of an Advocate Commissioner depending upon the factual aspects, and it differs from one case to another.

Key takeaways

The appointment of the Advocate Commissioner is confined to the limited purpose of noting down the physical features of the suit schedule property; the Commissioner shall not take note of, or ascertain, who is in possession of the lands.ratio¶80

Detailed headnote1 paragraphs

Civil Revision Petition (Art. 227, Constitution of India) against dismissal of I.A.No.118 of 2021 in I.A.No.42/47 of 2021 in O.S.No.314 of 2021 (suit for bare perpetual injunction), by which the trial Court at Sangareddy rejected the plaintiff's request for appointment of an Advocate Commissioner to note the physical features of the suit schedule property. Held: (i) appointment of an Advocate Commissioner lies in the Court's discretion and depends on the facts of each case; (ii) an Advocate Commissioner can be appointed for noting down the physical features and boundaries of the suit schedule property, and no prejudice is caused to the defendants by such limited appointment even where the suit seeks only bare perpetual injunction; (iii) the Commissioner's scope excludes ascertaining or noting who is in possession of the property. Petition allowed: impugned order dated 03.08.2021 set aside; trial Court directed to appoint a Senior Advocate Commissioner from the panel with fees as prevalent, to issue a warrant to note the physical features and boundaries (licensed Surveyor's assistance permitted); the Commissioner shall not note possession; no costs.

IN THE HIGH COURT FOR THE^{STATE OF TEIANGANA} AT

THURSDAY THE TWENTY^{THIRDDAY OF OCTOBER} TWO THOUSAND AND TWENTY^FIVE

PRESENT

THE HONOURABLE SRI^{JUSTICE NARSING RAONANDIKONDA}

L 1 11

Petition under Article 227^{ot the Constitutionof lndia, aggrievedby} the order of dismissal dl.O3tOBl2O21^{in |.A.No.118/2021for reiecting the} petitioner's request for appointment of Commissioner^{for the limited} purpose of noting down the^physical features of suit^{schedule propertyin} i.n.tto.tte ot 202't in l.A.^{No. 4712021in o.s.No.314120210n the file of} the Additional Judicial^{First Class Magistrate Special Mobile Court-cum-ll} Additional Junior Civil Judge^{at Sangareddy.}

Between:

S. Srinivas Rao, S/o. S.^{Raghavaiah,aged aQout-52 years,Occ. Business,} nlo. ft.tlo.fiat tto.sOZ, faizin^{Residendy, HIG 13 and 14, V Phase,KPHB,} Kukatpally, Hyderabad.

... Petitioner/Petitioner/Plaintiff

AND

M. Venkata Singaiah, S/o.^{M. Ayyappa Setty} about 55^yrs, Occ. Business FJo.^{-H.No.1-8-107,VasaviNagar} vtllage, Kandukur Mandal, Prakasham^District.

Kotaoati Prabhakar Rao, S/o.^{ChinaMalla Kondarayudu Agedabout.42yrs'} Occ.' Business R/o. H.No.768/1^{-3lA,Bhavanipuram, Viiayawada, A.P-}

Yana haranadh, S/o.^{Y. Appa Rao Aged abou!30 yfs' Oqc. perv-i99 R/o'} H.No.3-33, Vempadu villagd,^{Ponnaluru Manddl,PrakashamDistrict'AP'}

Maddi Sridhar Rao, S/o.Hanumantha^{RaoAged about. 46 yrs, Occ. Business} R/o. H.No.124-36-i, tGndukuru,^{Prakasam District, A.P.}

OF

Petition under section^{151 CPC praying that in the circumstanc€sstated} in the affidavit filed in support^{of the petition,the High court maybe pleased to} grant interim stay of all further^{proceedings in the suitincluding l.A.No.47l202'l} .in 6.S.tto.st+lZO2i on the file^{of Additional Judicial First Class Magistrate Special} Mobile Court-cum-ll Additional^{Junior CivilJudge at Sangareddy,pending} disposal of the above Civil Revision^Petition.

Counsel fcr the Petitioneft):SRl. A.Veeraswamy

Counsel for the Respondents: SAl.Gangadtar Chamarty

The Court made the following: ORDER

THE HON'BLE SRI JUSTICE NARSING RAO NAIIDIKONDA CIVIL No. I 51 1 0F 202r

ORDER:

Heard sri Ravi reja, learned counsel representing sri A.veera swamy, learned counsel for the petitioner and sri v.v.Ramakrishna, learned counsel representing sri ch.sai Gangadhar, learned counsel for the respondents.

2- The present Civil Revision Petition is filed und.er Araicle 227 of tle Constitution of India aggrieved by the order of dismissal dated 03.08.2021 in I.A.No.1 18 of 2o2L in I.A.No .42 of 2o2L in o.s.No.314 of 2o2L, on the file of the Additional Judicial First Class Magistrate Special Mobile Court-cum-Il Additional Junior civil Judge, sangareddy, rejecting the petitioner,s request for appointment of Advocate commissioner for the limited purpose of noting down the physical features of the suit schedule propert5r in I.A.No. 1 18 of 2021.

Aggrieved by the same, the present petition is filed by the petitioner/plaintiff on the following ground.s contend.ing that the learned Trial Court erred in considering the application for appointment of Advocate commissioner for limited purpose of noting down the physical features of the suit schedule property

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which is warranted. Further, the learned Trial Court was influenced by referring to the frling of the earlier suit O.S.No.319 of 2O13 ,rn the file of the Principal Senior Civil Judge at Sangareddy and erred in missing the crucial aspect with regard to the cirr:umstances warranting filing of the present suit for injunction against the respondents herein and frling the present applicatior: I.A.No.118 of 2O2l which it ought to have seen that as a fresh cause of action arose on 01.03.2021, when the respondent: and their henchmen tried to interfere with his possession, much subsequent to the earlier suit and that it is not advisable to the petitioner/plaintiff to implead fresh parties or amend the suit keeping in view of the fresh cause of action.

It is :lurther contended tJlat the order passed by the trial Court suffers from non-application of mind and pleased to hold that the przryer herein is to note down the physical features of the suit schedtile propert5r and such a request cannot be construed as fishing out information, as such when it is for a limited purpose of rroting down the physical features of the suit schedule property th,: appointment of Advocate Commissioner cannot be

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denied as held by this Court and no prejudice would be caused, if an Advocate Commissioner is appointed for the said limited Purpose.

5' The learned trial court considered that the petitioner not being in possession of the said property cannot seek relief of appointment of Advocate Commissioner, though admittedly the suit itself was filed by the petitioner/ plaintiff for relief of perpetual injunction against respondents,/defendants and ttreir henchmen, employees or anybody restraining them from interfering witll the case and peaceful possession of the petitioner/plaintiff over the suit schedule propert5r. Though, ttre present suit itself is only for the purpose of bare perpetual injunction, the question arises that whether the Advocate Commissioner can be appointed in such suit where the relief sought is only for the bare perpetual injunction.

Iearned counsel for the petitioner contended that the application filed by the petitioner is only for the purpose of noting down the physical features of said property but not for trespassing into the property of the respondents/ defendants.

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l,eanred counsel for the respondents contended that the petitioners were never been in tJre possession and that the very suit itself 'ras Iiled with all false allegations and averments and that earlie:: O.S.No.319 of 2O13 was filed on the file of Honble Senior Civ'.I Judge at Sangareddy for declaration-cumcancellatio:r document i.e., agreement of sale-cum-General Power of Attorney (for short GPA) and sale deeds and perpetual injunction and the said suit was dismissed for default and petition fo:: restoration uid.e I.A.No.214 is pending. It is also contended that respondent No.l in the capacity of holder of agreement of sale-cum-general power of attorney with possessiorr has sold away the suit schedule property to respondent Nos-3 and 4 for v:ilid sale consideration.

Learned counsel for the respondents contended that ttre suit is for perpetual injunction and petitioner is not in tlre possession and the question of appointment of Advocate Commissioner for any purpose does not arise and also contended that the leerrned trial Cor.lrt after going to into the merits of tLre case and after appreciating the entire contentions, has dismissed (

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the petition.

It is contextual to refer to the judgments of this Court as relied upon by the learned counsel for the petitioner in P.SREEDEUI V/S. I.V.L.N.VENKATA I,AKSHMI IIARSIMITA

PRASAITT, wherein in the said case there was a dispute between the land and the boundaries in the suit for decraration of titre of the plaint schedule property and this Court was pleased to allow the application for the appointment of Advocate commissioner. In an unreported judgment of this court in c.R.p.No. L3Tg of 2O2O, the Co-ordinate Bench while considering the Judgments cited in KORADA MURALI V/S. SRINMSA SAHUz and P.SREEDBUITs case supfla and also considering the Judgment cited in ARVMD KUMAR AGARWAL vs. LETGEIID EsrATEs PRIVATE LIMITTD REPRESEITTED BY ITS MANAGItrG PARTIYER, KOI(APEI vrLr.acE, RANGA REDDY DrsTRrcTs, held that when there is a serious dispute regarding identity of the propert5r or boundaries thereof, an Advocate Commissioner can be appointed even in the suit filed. for injunction and also relying

| (2020) 6 ALD 99

, 2020 (3) ALD 1 (APl

3 2015 (2) ALT 484

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vs. upon the^judgment cited in SHAMEEM BEGTIM

AND ANOTIIER+ came to the conclusion^that the appointment of Advocate Commissioner^{was only to note} down the physical features of the suit schedule^{propert5r and} thought it necessar5r to appoint the same in^{C.R.P.No.3845 of} 2018, wherein there is no specific bar and^{there no hard and fast} rule that ,\dvocate-Commissioner cannot be appointed^before commencetnent of trial or before passing an^{order granting} temporary injunction in view of the fact that appointment^{of an} Advocate Commissioner would help in disposing^{both I.A. and} further another^judgment of the High Court of Andhra^Pradesh, Amaravati in C.R.P.No. 1078 of 2019, wherein^{the learned} Tribunal considering the^judgments cited in^{the case of ARAWND} KUMAR AGARWAL vs. LEGEIID ESTATTS PRMTE^LIMITEDS and HARY.ANA UIALK BOARD

and vs.

AND OTHERST and also relYing

120t8 (2) ALD 2at7 s ALD 2015 (2) 206

6 (2008) I SCC = ,:008 AIR scw 2500

(
I
i

7 2010 [4) ALD 19'8

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upon the judgments cited in the case of BAIIDI SAMUEL AND ANOTHER vs. MEDIDA NAGESTIARA RAOs, held that the order of the trial court appointing an Advocate commissioner to ascertain the boundaries and identity of the property considered it to be proper and the court did not choose to interfere with the lindings of the trial court. Further, relied upon the judgment in the case of KORADA MURALT vs. sRrNwAsa sArru AND ANOTHER, wherein this court after having considered the entire record. and the contentions of both the counsel confirmed the order of the trial court appointing an advocate commissioner in the suit filed for relief of permanent injunction restraining respondent No.1 from interfering with the peaceful possession and eqioyment of the ptaint schedure property.

The petitioner, who is plaintiff in the said plaint, has contended that the defendants carne to the suit schedule propert5r along with JCB and tried to pull the shed and

I 2017 (1) ALT 493

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fencing in tJ:e suit schedule and tried to dig the suit land with the h,elp of JCB and the watchmen of the plaintiff tried to resist the illegal acts of the defendants and their henchmer:..

Learned counsel for the petitioner further contended that they are in possession of the suit schedule propert5r and the interlocutory application is filed seeking for appointment of Advocate Commissioner only for the limited purpose of noting down the physical features of the suit schedule property and stated that no Advocate Commissioner can be appointed for fishing out the evidence when there is dispute regarding identity of location of the propert5r and also dispute regarding boundaries. Law being settled that the Court can appoint an Advocate Commissioner when there is a dispute regarding identity of the very nature of the propert5r firr the purpose of knowing the physical features and boun<laries of the said land or the open plot or the house structures in the suit schedule property.

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The Court has the discretionar5r power for appointment of Advocate Commissioner depending rrpon the factual aspects and it differs from one case to another. In the suit filed by the petitioner/plaintiff, he stated that he is in possession of the suit schedule propert5r and the defendants came along with JCB and threatened the watchmen and occupied the suit schedule property, whereas according to the counsel for the respondents, respondent No. I sold the suit schedule propert5r to respondent Nos.3 and 4 and delivered vacant and peaceful possession of the suit schedule propert5r to them. Since then, t}.ey are in peaceful possession and enjo5nnent of the suit schedule propert5r without any interference from anybody. Furttrer, respondent Nos.3 and 4, being tJre purchasers, l:.ave sold away the suit schedule propert5r to respondent No -2 and delivered vacant and physical possession to him. Hawing purchased the suit schedule property, respondent No.2 rnutated his name in the village records and that tJ:e revenue authorities have also

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issued pattadar passbooks. Therefore, the respondents denied the allegations of the petitioner over the suit schedule propert5r.

In re,spect of the present Revision, tJle only point wtrich is require,l to be considered is whether there is necessity to appoint an Advocate Commissioner for the purpose of noting down the physical features. There is no quarrel regarding the said proposition of law laid down in the citations relied on by the petitioner. The Advocate Commissioner can be appointed for noting down the physical features and boundariesr of the suit schedule property. This Court considerinll the entire material placed before the court opines that no prejudice will be caused to tlee respondents, if an Advocat: Commissioner is appointed only for the purpose of noting down the physical features of the suil 5shsflrure propert5r.

L4- The qu.estion of ascertaining the petitioner,s possession in the prop,ert5r should not be within the of the

r-

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\

\

Advocate Commissioner and this Court also opines that the appointment of Advocate Commissioner is only for the limited purpose of noting down the^physical features of the suit schedule propert5r.

\

Hence, for the above said reasons, this Court is of the view that the present Civit Revision Petition frled by the petitioner deserved to be and is allowed by setting aside the order dated 03.08.2021 passed in I.A.No.1 18 of 2O2L in I.A.No.47 of 2O21 in O.S.No.314 of 2O2L. The learned trial^Court is directed to appoint any Senior Advocate Commissioner from the panel of Lawyers by fixing appropriate fees as is^prevalent and issue the warrant directing tJle Advocate Commissioner^to note down the physical features of the suit schedule^property along with the boundaries. If required, the Advocate Commissioner may take licensed assistance of Surveryor.^The Advocate Commissioner shall not take note of the aspect as^to who is in possession of the said lands. No order as to costs.

(-'

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M:iscellaneous applications, if any, pendirg in this appeal

shall skrnd closed.

SD'. A.JAYASREE

/

//TRUE COPYII

OFFICER

To,

1' The Additional Judicial First Class Magistrate Special Mobile Court-cum-ll Additional Junior civir Judge at sangareddy.(with records if any)

One CC to SRl. A .Veeraswamy, Advocate [OpUC]

one c'3 to sRr- sAr .Gangadhar chamarty, Advocate topucl 4.^.Two CD Copies

JA/PSL

HIGH COUR-T

DATED:23|1C:D02S

ORDER

CRP.No.1511 of2021

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CIVIL REVISION PETITION IS ALLOWED

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