Kottala Ashok, Vs Maisa Bheemavva @ Bheema Bhai

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134421

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IN THE HIGH COURT FOR^{THE STATEOF TELANGANA} AT HYDERABAD

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THURSDAY, THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY^SIX

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PRESENT

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THE HONOURABLE SMT JUSTICE^{RENUKA YARA}

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CIVIL REVISION PETITION NO: 555 OF²⁰²⁴

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Petition under Arlicle 227 of Constitution^{of lndiaaggrreved by the orderdated} 04 01 .2024 passed in l.A.No 277^{of 2023in O S No. 86 of 2021 on the file of the} Court of the Principal Junior Civil^{Judge at Nirmal.}

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Between:

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Kottala Ashok, S/o. Kottala Dharmaiah^{Agedaboul 47 yearc' Occ: Agriculture} R/o.siddapur Street of Nirmal^{Town Nirmal District, TelanganaState}

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... P etitio n e r/Res^{p. N} o.2/Def.^No.2

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AND

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Maisa Bheemavva @ Bheema^{Bhai, D/o Late Maisa Nadipilvlallu Aged about} 67 years, occ. Agriculture R/o.siddapur^{Streetof Nirmal Town NirmalDistrict,} Telangana State.

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... RespondenUPetitioner/Plaintiff

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Kottala Nadipi Mallaiah,^{S/o.Kottala Dharmaiah Aged about50 years, Occ'} Agriculture R/o.siddapur street of^{Nirmal TownNirmal Drstrict, Telangana} State-

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... Res po ndenUResp' No. 1/Def.^No.1

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(Resp-No.2 rs not necessary party to thrs CRP)

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l.A. NO: 1OF 2024

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Petition under section 151 CPC^{praying that in the circumstancesstated in the} affidavit filed in support of the^{petition, the High courtmay be pleasedto suspend} the operation of the Docket^{orderdt.04.01.2024passedin LA.No277 ol 2023in} o.S.No.B6 of 2021 on the file of the^{Prrncipal Junior civilJudge at Nirmal, pending} disposal of the main C.R.P.

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Counsel for the Petitioner : Sri C Hari^Preeth

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Counsel for the Respondent^{No.1 : Sri A Jagan}

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The Court made the following:^ORDER

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-ry

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IN THE HIGH^{COURT FORTHESTATE OF TELI''IGANA} '\T HYDERABAD

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.THE HONOURABLE SMT. JUSTICE RENUK'\ YARA

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CIVII, REVISION^{PETIT ION No.555of 2()14}

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THE OSTIT DAY OF^{FEBRUARY'2026}

Bctwcc n:

Sri Kottala^Ashok

Petitione r

AND

Ms. Maisa Bheet.tlavva @^{BheemaBhai andanother'}

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R c spott cl!'ll^ts

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oRDI.lll:

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t lcard N{/s. C. Hari^{Preeth, learned counsel fbr the p titiotrerand Sri} A..lagan,lcarnedcounselforrespondentNolPerusedth::ntirerecord'

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Z. .l hc Civil Rcvision Petition is prelcrrcd by the peti ' rncr/respotr cletrt No.2/dcl'cndant^{No.2 aggrievedby the order passetl} ,y t.hc lcat trccl Principal .lunior^{Civil Judge at Ninnal ('trial Coun') in [} "r 'io.l77^ol'1013 in O.S.No.86^{of 2021, dated 04.01.2024, whereina pei} ion flled under Order XXVI^{Rule 9 read with Section l5l of CPC seekirt} appointnrent of an Advocate Cornmissioner^{to demarcatethe entire lan'l} in Sy.No.l4712 situated at Koutla^{(K) ShivarVillage of NirmalRural :rtt'} Mandal and to fix the boundaries^{and measurethe suit land as per registtr} 'd sale deed and also detnat'cate Ac.0-08^{guntas of land in said surveyrr} ,rnbcr by tixing bqrndaries,^{has been allowed appointing an Advocate Ccr} missioner to fix

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II

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RY,.I ,t: cRP 555 2024

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the boundaries as per registered salc deeds of both the parties with rcspect to their land in Sy.No.147 of Koutla (K) Shivar Village of Nirmal Rural and Mandal.

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The brief t-acts of the case are that respondent No.l herein is ptaintiff and she filed a suit against the petitioner hcrein and respondent No.2 herein seeking perpetual injunction with respect to suit schedule propefty consisting of Ac.l-17 guntas in Sy.No.14712 corrclating to Sy.No. 147 situated at Koutla (K) Shivar Village of Nitmal District. Respondent No.l is claiming ownership and possession ovcr thc suit schcdule properly on the basis of a registered sale deed document bearing No.946/198 I dated 23 .06.1981. Ever since purchase of the proper11,, respondent No. I is claiming to be in peaceful possession and enjoyment of said agricultural land. While so, respondent No.2 and the petitioner helein have developed an evil eye and are trying to occupy the suit schedule propefty illegally. The petitioner and respondent No.2 came to the suit land, used force to manhandle respondent No.l and dispossess her from the suit schedule property and therefore, a suit for perpetual injunction has been filed. In said suit at the time of trial, the petition under revision was filed seeking appointment of an Advocate Commissioner for resolving the dispute between the contesting parties.

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ItY,J cRP_555²⁰²⁴

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In the petition^{underrevision,respondent No'l plt rded that he is} claiming ownership^{and possessionover the suit schecl'le propertyby} virlue ol registered^{sale cleeddated23'06'1981' While so' hc petitioneris} claiming ownership^{and possessionover landat measurinl} '\c'0-08^guntas in Sy.No.147^{and on that pretext trying to encroachand r lert-ere with her} propefly. In order to^{avoitl titigation, there is a need fol lemarcating the} entire land in^{S1'.No.I 47, whichis to a total extentof Ac'l} / guntasand l'tx} bounclaries. Such^{an exerciseis not collection ofevidenc: hut atl et''rcise} taken up to avoid^{nrultiplicationof litigation'}

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'['hc petitioner hcrein opposed the petition, statinl that he has^no kr-rowledge about^{purchase of land to an extent of l'} t-17 gurrtasⁱⁿ Sy.No.147/2^{by lespondentNo.1 hereinand that the botr} rdaries shownⁱⁿ ;e ol case. The the suit schedule^{are lalse and created for the purpl} petitioner denied^{intert'ering with the land whichbelorr} :.s to respondent ''1o.2 herein) and No. I . The^{petitionerpleaded that his brother (responden.} himsetf have^{purchased Ac.0-08 guntas of land in Sy'} ,{o. 147 and land admeasuring^{Ac.3-08 guntasin Sy.No' 148 under a re :} stered sale^deed ' in possession of document bearing^{No.3060/1996dated 16'12'1996 and ar} said land. It^{is furlher case of petitionerthat responderI} No.1 has filed^a false suit to^{knock away their property' Lastly, it is plt} Lded that in case

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RY,J ('RP 555 2024

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Advocate Commissioner is appointed to demarcate the suit land it amounts to collection of evidence as such opposed the petition.

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Upon considcring the case of both the parties, thc lcarncd trial Court concluded that appointment of an Advocate ('onrrnissioner does not alnount to collection of evidence since respondenr N().I did not dispute ownership of the petitioner and his brother over Ac.0-0il guntas of land in Survey No. 147 and land admeasuring Ac.l - l7 guntas in Sv.No. 14712 Since there is no dispute about the ownership, the onll.,dispute rvas held to be that of boundaries and theretbrc, measurerncnt has to be, taken rl ith rct-erence to revenue records. Theretbre, it is held that it is.iust and proper to appoint an Advocate Commissioner for the purposu' of dentarcation and fixing boundaries on the basis of revenue records. U/ith that tinding, the learned trial Court has appointed an Advocate Cor.nrnissioncr to demar.cate the entire tand in Sy.No.l47 by fixing boundaries and also to measure the land as per registered sale deeds of the petitioner, respondcnt No.2 and respondent No.l over extent of land of admeasuring Ac.l-t7 guntas and Ac.0-08 guntas respectively. Aggrieved by the same, the present revision is preferred.

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I . In grounds of revision, it is pleaded that the trial Courl has allorved thc application for appointment of Advocate Cornrnissioner to fix the

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RY,J CtiP 55i 2024

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boundaries for rncasu|ing^{land by exceeding the jurisdictit,r and the relief} g|anted is outside rhe^pun,iew ol^{the suit relief. Further, iis pleadedthat} tlte reasonir]g givcn lbr^{ciearing the cloud over the extettol- lend lnd to} asccnain the lactrral asPect^{the Advocatc Commissioner'srrppoiuttrtctrtis}

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necessary is bcyorrd rl're scope of^{pleadings of the suit wht r the suit is filed} fbr declaration ol' title,^{the assumptionto clear the cl<,r.1 ovcr title by} asceftaining lhcts is^{unrenable.Further, it is pleaded t at i11 the case} bet,,reen Koduru^{Sesha Reddy v. G. Venkata Ram Rer1'l} ''.^{il is l.'eld thot} a conrntissionct- .an bc^{appointed aller the evidence :closed.Ir-r the} .iudg.rent^{.fcase irr Sarla Jainv. Sangu Gangadhar2, its hcld that i, a} suit for.injunction sinrpliciter,^{schedule propertycannotbe crnarcatedrrith} ttre help of an Advocate^{Clommissioncras the same amo- rts t() collection} of evidcnce. By ig.noring^{these basic principles, the learn: trial Courthas} allowed tl're^petir ion.^Lastly, it^{is pleadedthat when lsl.rottdetrlNo l} clairned 1o har,e Possession,^{it is lor her to establish htr possession and} demar.cation and lixing^{of boundaries relates to complexuestions of f-act} which can be dccided only in a^{declaratory suit arLr thcrefore, not} permissibte in a suit filed seeking^{injunctionsimpliciter \s such,prayed}

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that the impugned order^{be set aside.}

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'^zooe 1t1^nLo:zz

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'^zote 1:1^{lrLo tsz}

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RY,J cRP 555 2024

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The facts bome by record are that respondent No.1 herein is claiming ownership and possession of land to an extent ol Ac. 1-17 guntas in Sy.No. 147i2 of Koutla (K) Shivar Village, Ninnal District. While so. the petitioner and respondent No.2, who are brothers, are clairning ownership and possession of land to an extent of Ac.0-08 guntas in Sy.No. 147 and Ac.3-08 guntas in Sy.No.i48. It is the case of respondent No. I thar rhe petitioner and his brother (respondent No.2 herein) are trying ro interfbre with her possession over the suit schedule land i.e. Ac. l - I 7 guntas in Sy.No. 14712. Respondent No. I is not disputing the owncr.ship ol tlre petitioner and respondent No.2 over Ac.0-08 guntas of land in Survey No. 147. Therefore, while seeking perpetual injunction in order to avoicl lurther litigation, a petition is filed seeking appointment ol Advocate Cominissioner to demarcate the entire land in Sy.No.l47 together with ttre land of respondent No. I to an extent of Ac.1-17 guntas and land ol the petitioner and respondent No.2 to an extent of Ac.0-08 guntas.

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The aforesaid facts are not in dispute by either of the parties. The petitioner and his brother i.e., respondent No.2 do not have any dispute with the ownership of respondent No.l over her property. Therefore, the _ _issue^{between the parties was only with respectto boundariesand whether} or not there was interference by the petitioner and his brother o'er the land

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RY.J cRP 55i²⁰²⁴

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of respondent No.1^{or an attemptby respondent No'l to 61 ab the land that} belongs to the^{petitionerand respoudent No'2'}

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In this context.^{the petition for appointmerLr ofAdvocate} Cornmissioner^{is llled lor the purposeol hxing the bout.rrl rries of the land} in Sy.No.147^{whichincludes the land of respondent No l to an extentof} Ac. l-17 guntas and^{Ac.0-08guntasof the tand of petition:andhis brother} i.e., respondent^{No.2 herein. Aparl tiom fixingthe bour Jaries for entire} land in S;'.No. 147^{a dernarcation of respective properlic is also sought'} 'fhe excrcise sought to be taken up by the Advocate Cott tnissioner is not one of ascertaining^{of possession, but it is fixing of bo: rdaries to avoid} boundary disputc.

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In that context,^{this courl in M.L. Srinivas Rao l. J Kurienl, held} that Commissioner^{can be appointedin a suit for perma r .'nt injunctionto} suruey and for^{dcmarcatingthe tands and to give his eport about the} boundaries. Fur-rher. in^{Mende Shekar v. Manchikant Balajia,it was} held that Advocate^{commissionercan be appointed t( note down the} physical leatures of'the^{schedulepropefiy in a suitfor perp .:tual injunction.}

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In the instant^{case, the AdvocateCommissionelI as appointed for} the purpose of demarcating^{the boundaries and notiril down physical}

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'^{rggz (r) n.p.r.t.or (st't)}

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'ruaruu/t/osgs/zozs

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RY,J CRP 555 202.1

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features. The appointment of an Advocate Commissioner is deprecated when the purpose is of ascertaining possession of respective parties o','cr the subject land. When the suit is filed seeking relief of perpetual in^junction claiming to be in possession, the Advocatc Commissionc,r canltoI be appointed to prove the possession as the same alrounts to collection of evidence, whereas when possession and ownership are not in dispute, boundaries alone are in dispute, appointrrent of Advocatc Commissioner is permissible as held in M.L. Srinivas Rao and Mende Shekar (both cited supra). As such, the order passed by the Iearned trial Court does not su ffer rvith any infirmity and thele arc no grounds 1or interlerence. the Civit Revision Pctition lacks rnerits and the same is liablc to be dismissed.

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I3. ln the result, the Civil Revision Petition is dismissed by confirming the order dated 04.01.2024 passed by the learned trial Court in t.A.No.277 ol 2023 in O.S.No.86 of 2021. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed

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//TRUE COPY//

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SD/. N.CHANDRA SEKHAR RAO DEPUTY REGISTRAR (v

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SECTION OFFICER

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To, 1. The Principal Junior Civil Judge at Nirmal. 2. One CC to Sri C Hari Preeth, Advocate tOpUCl 3 One CC to Sri A Jagan, Advocate tOpUCl 4. Two CD Copies

Sail'S I

.t.

HIGH COURT

DATED: 0510212026

ORDER

CRP.No.555 of 2024