Nallabelli Srilatha Vs a. Vidyasagar Rao

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE TENTH DAY OF JUNE TWO THOUSAND AND TWENry FIVE

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PRESENT

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THE HONOURABLE SMT JUSTICE TIRUMALA OEVI EAOA

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CIVIL REVISION PETITION NO:3702 OF 2024

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Petition filed under Arlicle 227 of the constitution of lndia aggrieved by the order dated 0210912022 in t.A.No.169 of 2024 in o s No..t 16 t ot 16zz on tne rite of the Principal Junior civil Judge-cum-Judicial Magistrate of First class, Jayashankar Bhupalpally

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BETWEEN:

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Nallabelli srilatha, wo Raghu, Age. 42 years, R/o Budharam Village. Ghanpur (M), Jayashankar Bhupalpa'ity Distiict.

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...Petitioner/ RespondenUpalanitiff

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AND

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A Vidyasagar !ao,.S/o Late Kishan Rao, Age. 73 years, Occ. Agriculture andRetd. Medicat^{practitioner,} R/o H.No.6_2_SaIXat<aliCotoirt, i;,.,h;i;;J; District

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...RespondenU^{petitioner/Defeendant}

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lA NO: 1 OF 2024

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Petition under Section 151 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, tne Hlgr, court may be pleased pleased to stay all further proceedings in o.s. No..1 161 of 2022 on ihe fitL of tne Principal Junior civil Judge-cum-Judicial Magistrate of First class, Jayashankar Bhupalpally pending disposar of the above civil Revision petition and pass

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Counsel for the Petitioner :SRl JAGAN MOHAN PERUMANDLA

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Counsel for the Respondent : SRI MANDHATA SLK SRUTHA KEERTHT

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The Court made the following: ORDER

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THE HON'BLE SMT. JUSTICE TIRUMALA DI'VI EADA CryIL REVISION PETITION N0-3702 0F 20.24

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ORDER:

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This Civil Revision petition is hled under Article 22T of the Constitution of India, aggrievcd by the order dated, O2.O9.2024 in I.A.No. 169 of 2024 in O.S.No. 1 161 of 2022 by the principal Junior Civil Judge - cum - Judicial Magistrate of First Class, Jayashankar, Bhupalpally (hereinafter referred to as ,,the trial Court")

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The revision petitioner herein is the respondent/plaintiff and respondent is the petitioner/ defendant before the trial Court. For conveniencc and clarity, the parties herein are r eferred to as they were arrayed before the trial Court.

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The case ol the petitioner before the trial Court is that he has filed a petition under order XXVI Rure 9 of the rrode of civil Procedure praying the court to appoint an advocate c,)mmissioner to determine the survey number of the land (sr,rit schedule properry) which is in the possession and enjoynrent of the respondent wiLh the assistancc of Assistant Director. for Survey and Land Records, Warangal ernd u,ith the help of tippon and village map of Buddaram. The suit was filed agairst him for permanent injunction in respect of Ac.O2-2O gunta:; in survev

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No.734 I A/ l, situated at Buddaram Village, Ghanpur Revenue Mandal. The respondent claimed to have purchased the suit land in survey No.73a /A/1 from its erstwhile owner and obtainecl temporary injunction against him and on the basis of the said injunction order, the respondent has entered into possession of the land comprised in Sy.No.703 of Buddaram. It is the case of the petitioner that survey Nos.734 and 703 fall adjacent to each other and that survey No.7O3 measures Ac.1l_1g guntas and that his late father's name is recorded as owner in the revenue records while the respondent asserts that she has been in possession of the suit land comprising Sy.No.734 on the spot and the contention of the petitioner is that the respondent is in possession of land comprising in survey No.703 and thus, it has to be decided by a surveyor of the District Survey and Land Records by conducting survey on the suit land with the assistance of tippons and village map and submit a report to the Hon,ble Court. It is his case that the oral or documentary evidence cannot determine the dispute except by surveying the suit land.

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The respondent/ plaintiff filed counter and contended that the petition is neither maintainable in law or on facts and that the petitioner has filed the petition just to deiay the proceedings and that there is a direction from the Hon,ble High Court of Telangana

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to dispose the suit within six months. It is his cont()ntion that the petitioner intentionally filed the above petition just :o knock away the property. That in a suit for injunction the Hon'ble Court has to look into the possession over the suit schedule 1)roperty as on the date of hling of the suit and a commission er cannot be appointed to gather evidence in such cases. He furt.rer contended that the petitioner filed the present petition to gather and for collection of evidence only and that in a suit for injunction an advocate commissioner cannot be appointed at the threshold to gather evidence. It is further contended by tLer that she purchased the suit schedule property 12 years zLgo from the erstwhile owner lawfully and has been in continuor,rs possession till date and also that the petition suffers from latches as it is hled only to delay and postpone the matter with one p retext or the other. Therefore, prayed to dismiss the petition.

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Based on the above contentions, the trial Court has framed the following points for consideration:

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"Whether the petitioner/ defendant is entitled for the reiief as prayed for?"

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On hearing both sides, the trial Court has zrllowed the petition appointing an advocatc commissioner to locate the suit schedule property and the alleged survey No.7O3 witl the help of

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Surveyor of the District Survey and Land Records with the assistance of tippons and village map and filed his report with plan. Aggrieved by the said order, the present revision petition is filed.

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7 . Heard the submissions of Sri Jagan Mohan perumandla, learned counsel for the revision petitioner and Sri Srutha K Mandhata, learned counsel for the respondent.

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The learned counsel for revision petitioner submittcd that the impugned order is perverse, irregular and liable to be set aside. He argued that the trial Court ought to have proceeded with the trial but instead it has allowed the petition which would further protract the litigation. He further argued that in an injunction suit the aspect of possession has to be looked into and the trial court can arrive at a conclusion based on the evidence adduced by the parties, but instead the trial court has appointed a commissioner to ascertain the possession of the parties over the suit schedule property, which is not proper in the eye of law. He further argued that in o.s.No.l7 of 2o1g the suit schedure property pertains to survey No.T 3a / A/ 1 wherein the trial court has granted temporary injunction and against the said orders, the defendant has filed an appeal in CMA No.6l of 20lg before the VIII Additional District Court, Bhupalapally and the same was

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dismissed by order dated 17.O3.2022 against whictL CRp No.1916 of 2022 was filed before this Court and that this Court was pleased to dispose of the same by order dated 1(r.O9.2O22 and directed the trial Court to dispose of the suit within a period of six months. It is the contention of the counsel that the clispute in the present suit is with regard to survey Nos.734 and 7O3 and that instead of cooperating with the Court to complete tlle trial within six months, the defendant is playing delay tactics by filing one petition or the order and the itnpugned order is a rer;ult of such a petition. He therefore, prayed to allow the petition rrnd set aside the impugned order dated O2.O9.2024.

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The respondent counsel, on the other hand, has submitted that the entire dispute revolves around only a single groint that the plaintiff in the suit who is the petitioner herein claim s possession in survey No.734 but she is in the actual possessi >n of survey No.703. The respondent's contention is that the petitioner is under the apprehension that the land in her possession is in Sy.No.734/A and that the entire discrepancy is with regard to the survey number pertaining to the land that is in occupation of the revision petitioner herein. While, she assumes it t,) be survey No.734 /A, the respondent herein assumes it to be survey No.703. Since both the lands are adjacent to each other, the fact has to be

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ascertained by local survey to be conducted by the off-rcial surveyor with the help of tippons and viliage maps and therefore, to put an end to the litigation the present petition has been liled by them before the trial Court and that the trial Court has rightly allowed the petition appointing arr advocate commissioner to determine the survey number of the land in which the petitionerplaintiff claims to be in possession. She therefore, prayed to uphold the orders of the trial Court by dismissing this revision petition

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Based on the above contentions, this Court frames the following points for consideration:

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1. Whether the order of the trial Court dated O2.O9.2024 in I.A.No.169 of 2024 in O.S.No. 1161 of 2022 is sustainable in law and ur-rder the facts?

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2l To what reliel?

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FOINT NO.1:

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a) A perusal of the record reveals that suit in O.S.No. 1 161 of 2022 is hled by Nallabelli Srilatha claiming to have purchased the suit schedule properties in survey No.73a / Al 1 seeking injunction and that in the pending suit a temporary injunction was granted in her favour and the trial is being proceeded in the main suit.

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b) The contention of the plaintiff before the trial Court in suit is that she is in possession of survey No.734 lA/1.^'the contention of the respondent is that the land in which the plair tiff is claiming possession falls actually in survey No.703 but 1ot in survey No.734. Further, in support of her contention they have also hled location sketch under Ex.P7 and it shows that the rlurvey No.703 and 734 are located adjacent to each other. Thus, the parties are not sure about the exact Iocation of the suit scherlule property. The plaintiff claims that to be in survey No.734lA while the defendant claims that the plaintiff is in possession of Sy.No.703. In such a case, it would be proper to appoint an advocate commlsstoner.

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c) Order 26 Rule 9 of CPC is extracted hereunde:- lor the sake of reference:

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"9.^Commissions to make local luvestigations - In tny suit in which the Court deems a local investigation to be req_risite or proper for the purpose of elucidating any ;atter in displ te, or of ascertaining the market-value of any property, or the anrount of an:y mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit ( irecting him to make such investigation and to report thereor to the Court:

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Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules._.."

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d) Thus, as per the said provision a Court can order for local

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\ iqrvestigation when it is required for elucidating arly matter in dispute. Since, the present suit revolves around a rlispute with

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regard to the locaiization of the suit schedule property, the trial Court has rightly granted the said relief of appointing advocate commissioner to determine the survey number of the suit schedule property by conducting a survey with the help of ofhcial surveyor.

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e) The respondent counsel herein has relied upon a decision of this High Court rendered in Tangella Ranga Reddg a. Koppula Srintuas Reddgr, wherein it was held that when there is a dispute regarding boundaries and extents of the propertieS and the survey numbers in which they were located, the facts have to be physically verified and measuring of the land on the spot by a Surveyor would become necessary. When a party has right to make use of the provision of law for proper adjudication of the matter in controversy, he is to be permitted to avail that provision, otherwise the same would become redundant. By observing so, this Court hds dismissed the CRp uphotding the order of the trial Court by which an advocate commissioner was appointed to note down the physical features of the suit land and their boundaries with the help of Mandal Surveyor.

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| 2023 (61 ALD 637 (TS)

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0 The powers of this Court under Section 115 o' the CPC are limited to the extent of looking into the existence of L:gal infrrmity, if any, in the impugned orders.

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d Section 115 of the CPC is extracted hereunder for the sake

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of reference:

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Rewision.-( l) The High Court may call for the record of any case which has been decided by any Court subor-dinate to such High Court and in which no appeal lies thereto, arrd if such subordinate Court appears-

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(a) to have exercised a jurisdiction not vested in it by lar.., or

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(bl to have failed to exercise a jurisdiction so vested, or

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(c) to have acted in the exercise of its jurisdiction illegall]' or with material irregularity, the High Court may make such orrler in the case as it thinks fit:

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Provided that the High Court shall not, under this sec ion, vary or reverse anv order made, or any order deciding an issrle, in the course of a suit or other proceeding, except where the crder, if it had been made in favour of the party applying for revisi-:n would have hnally disposed of the suit or other proceedings.

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(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies eith:r to the High Court or to any Court subordinate thereto.

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(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.

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Explanation.-h this section, the expression "any case which has been decided" includes any order made, or any order der iding an issue in the course of a suit or other proceeding.

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h) If at all the trial Court has exercised jurisdictiorr noL vested

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in it by law or if it has failed to exercise jurisdiction or iI has acted in the exercise of jurisdiction illegally, only then the High Court shall interfere with the trial Court proceedings. In he present 'taTe, it cannot be said that the trial Court has; exercised

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jurisdiction which is not vested in it or has also not acted illegally or with any material irregularity.

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i) In Haryana Wdqf Board o. Shanti Sarup and. other*,

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the Hon'ble Supreme Court has held as follows:

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"ln this case, an application was filed under Order 26 Rute 9 of the CPC which was rejected by the trial Court, in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CpC".

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j) Thus, in view of the legal position under Order 26 Rule 9 read with Section 75 of CPC and in view of the law laid down in the above cited decision, it is held that the trial Court has not committed any error by appointing the advocate commissioner to locate the suit schedule property with the help of surveyor of District Survey and land records and with the assistance of tippons and village map and other authenticated revenue records. Since the trial Court has acted in a proper prospective and has acted within its jurisdiction in passing the impugned order, it is held that the order of the trial Court in I.A.No.169 of 2024 tn O.S.No.1161 of 2022 is sustainable in law and under the facts. Point No.1 is answered accordingly.

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2 2OO8 SCC OnLine SC 1084

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12. POINT NO.2:

In view of the hnding arrived at Point Itlo. 1, the Civil Revision Petition is dismissed upholding the order dated 02.O9.2024 in I.A.No.166 of 2024 in O.S.No. 1761 of 2022 by tine Principal Junior Civil Judge - cum - Judicial Mag strate of First Class, Jayashankar, Bhupalpally. There shall be no order as to costs.

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Miscellaneous applications, pending if any. shall stand

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closed

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//TRUE COPYII

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Sd/- A. PRATHIMA (rPq PUTY REGISTRAR

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SecrroN oFFtcER

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To,