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2022 DIGILAW 30 (TS)

Balamani v. State of Andhra Pradesh

2022-01-18

A.VENKATESHWARA REDDY

body2022
ORDER : 1. This Civil Revision Petition is filed under Article 227 of the Constitution of India, assailing the order dated 04.10.2012 in IA No.457 of 2012 in OS No.3653 of 2010 on the file of the learned XIX Junior Civil Judge, City Civil Court, Hyderabad. 2. This application in IA No.457 of 2012 has filed by the petitioners/defendants against the respondents/plaintiffs under Order26, Rule-9 read with Section 151 of the Civil Procedure Code (for short ‘CPC’) for appointment of an Advocate Commissioner to note down the physical features of the suit schedule property. Accordingly, that application was allowed. Smt. T. Shailaja Rao is appointed to note down the physical features of the petition schedule property and boundaries along with the help of Surveyor and the Advocate Commissioner was directed to file a report along with photographs on or before 29.10.2012. Accordingly, that application was allowed. Smt. T. Shailaja Rao is appointed to note down the physical features of the petition schedule property and boundaries along with the help of Surveyor and the Advocate Commissioner was directed to file a report along with photographs on or before 29.10.2012. Aggrieved by the said orders, the respondents/plaintiffs filed this civil revision petition on the following grounds : (i) The Court below ought to have seen that the Advocate Commissioner cannot be appointed to collect the evidence; (ii) The Court below ought to have seen that the Land Grabbing Case filed against the petitioners in LGC No.43 of 1997 before the Special Court was dismissed holding that the Government does not have title to the schedule property, which in fact confirmed the earlier round of LGC No.58 of 1990 where even earlier the Government claimed the schedule property belonging to the Government, but has lost LGC No.58 of 1990; (iii) The Court below ought to have seen that on the application of Mandal Revenue Officer, the Special Court during the pendency of LGC directed the Deputy Director, Survey and Land Records to file a detailed report, which was taken on file in LGC, the Director was duly cross-examined and considered by the Special Court at the time of passing orders in LGC No.43 of 1997; (iv) The Court below ought to have seen that a private dispute between the petitioners and original pattadars on contest was decided in favour of petitioners/plaintiffs in OS No.484 of 1994 on the file of the X Junior Civil Judge, City Civil Court, Hyderabad, which shows that the schedule property is a private property and not a government land; (v) The scope of the suit is a suit for injunction simplicitor and title in the earlier round of litigation and injunction was granted in favour of the plaintiffs and the suit is coming for defendants’ evidence. At this stage, appointment of Advocate Commissioner amounts to abuse of process of law. 3. Heard learned counsel for the revision petitioners/plaintiffs. Despite granting ample opportunity, there was no representation on behalf of the respondents/State Government. The learned Government Pleader for Arbitration remained absent and there is no representation on his behalf. Perused the material placed on record. 4. For the sake of convenience, the parties are hereinafter referred to as plaintiffs and defendants as arrayed in the Original Suit No.3653 of 2010. The learned Government Pleader for Arbitration remained absent and there is no representation on his behalf. Perused the material placed on record. 4. For the sake of convenience, the parties are hereinafter referred to as plaintiffs and defendants as arrayed in the Original Suit No.3653 of 2010. 5. The defendants in the original suit have filed IA No.457 of 2012 for appointment of Advocate Commissioner to note down the physical features of suit schedule property – land admeasuring 2000 square yards in Survey No.223 corresponding to old Survey No.182, out of total extent of Ac.2.10 guntas situated at Saidabad Village and Mandal, Hyderabad Revenue District with precise boundaries as mentioned in the schedule of property. 6. The original suit is filed for injunction simplicitor alleging that originally the father of plaintiff No.1 and grandfather of plaintiffs 2 to 10, late Begari Babaiah has purchased the suit land from the son of original pattadar, Singireddy Venkata Swamy and after purchase, his name was recorded in all the revenue records in pattadar column. Thereafter, the defendants have tried to interfere and dispossess the husband of plaintiff No.1 and father of plaintiffs 2 to 10. At that stage, B. Yettaiah, husband of plaintiff No.1 and father of plaintiffs 2 to 10 filed OS No.1496 of 1983 on the file of the IX Assistant Judge, City Civil Court, Hyderabad and the said suit was decreed on 27.02.1984. The Government has filed LGC No.58 of 1990 against the husband of plaintiff No.1 and father of plaintiffs 2 to 10 in respect of 1412 square yards of land in Survey No.223, which includes the suit schedule property and that case was dismissed on 13.10.1992. The Government did not prefer any appeal against the orders in LGC No.58 of 1990. 7. While the matter stood thus, the legal heirs of original pattadar have filed OS No.484 of 1994 on the file of the X Junior Civil Judge, City Civil Court, Hyderabad against late Begari Babaiah, grandfather of plaintiffs and that suit was dismissed on 01.05.2000. Appeal Suit was preferred in AS No.309 of 2000, it was also dismissed on 03.10.2002. Again, the Government has filed LGC No.43 of 1997 at the instance of some third parties, it was also dismissed by the Special Court. Appeal Suit was preferred in AS No.309 of 2000, it was also dismissed on 03.10.2002. Again, the Government has filed LGC No.43 of 1997 at the instance of some third parties, it was also dismissed by the Special Court. Only in order to protect the possession of plaintiffs in respect of suit schedule property, the original suit No.3653 of 2010 is filed for injunction simplictor. Pleadings are completed, evidence of the plaintiffs is also closed and while the evidence of defendants is in progress, the present application is filed at the instance of defendants for appointment of Advocate Commissioner. The trial Court on perusal of the entire record felt it essential to appoint Advocate Commissioner with an observation that the Advocate Commissioner cannot be appointed for collection of evidence, but as per the contention of the plaintiffs, there are structures in the petition schedule property and if Advocate Commissioner is appointed, ground level reaction will come out and it will be helpful to the trial Court to determine the issue in dispute and no prejudice will be caused to the respondents and while relying on the principles laid in Shaik Zareena Kasam v. Patan Sadab Khan and others, 2011 (4) ALT 541 appointed the Advocate Commissioner. 8. Be that as it may, in a suit for injunction simplicitor, it is for the plaintiffs to establish their peaceful possession and enjoyment in respect of the suit schedule property as on the date of filing of the suit. In the present case, the plaintiffs have explained the chequered history of litigation in respect of suit schedule property. It is almost a third round of litigation, either before the Special Court for Land Grabbing Cases or in the earlier round of litigation before the Civil Courts either the plaintiffs or their predecessors-in-title were successful. At this stage, appointment of Advocate Commissioner to note down the physical features and to localise the suit schedule property and to fix the boundaries is a futile exercise, more so, in view of the fact that as per the directions of the Special Court in LGC No.43 of 1997, the Deputy Director, Survey and Land Records has verified, localize the land and he was also duly cross-examined before the Special Court in LGC No.43 of 1997. On the other hand, such appointment of Advocate Commissioner at the instance of defendants in the original suit filed for perpetual injunction is a factual boundaries and no useful purpose will be served. 9. The learned counsel for the petitioners/plaintiffs also relied on the principles laid in G. Ramanaiah v. K. Krishnaiah, 2019 (4) ALD 146 wherein this Court at paragraph Nos.6 and 7 while relying upon earlier decisions of this Court and the judgments of the Hon’ble Apex Court held that the appointment of Commissioner in a suit for declaration of title and perpetual injunction or in a suit for injunction simplicitor to note down the physical features amounts to collection of evidence, which is impermissible. In such circumstances, in my considered view, there is no need for appointment of Advocate Commissioner either for collection of such evidence to find out the exact area of property in possession of the plaintiffs or to localize the suit schedule property. Therefore, viewed from any angle, I am of the considered opinion that the trial Court is not justified in appointment of Advocate Commissioner through the order impugned to note down the physical features, structures, if any in existence in the suit schedule property. Consequently, the order impugned is liable to be set aside. 10. In the result, the Civil Revision Petition is allowed. The impugned order dated 04.10.2012 in IA No.457 of 2012 in OS No.3653 of 2010 is hereby set aside. Since the original suit is for posted for defendants’ evidence, the trial Court shall proceed in accordance with law, conclude the trial and dispose of the matter, within four months from the date of receipt of a copy of this order. Both the parties shall cooperate with the trial Court for expeditious disposal, as directed. However, in the circumstances of the case, there shall be no order as to costs. 11. Miscellaneous applications, if any pending in this revision petition shall stand closed.