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2023 DIGILAW 459 (AP)

Macherla Chennnamma v. Polu Sundara Rao

2023-02-24

K.MANMADHA RAO

body2023
ORDER : K.Manmadha Rao, J. This Revision Petition, under Article 227 of the Constitution of India, is preferred against the order, dated 21.01.2020, in I.A.No.2980 of 2019 in O.S.No.105 of 2019 on the file of the Court of Principal Junior Civil Judge, Markapur, filed under Order XXVI, Rule 9 of C.P.C seeking relief to appoint an advocate/commissioner with a direction to measure the petition schedule land and fix up boundary stones with the assistance of District Surveyor and also note down the physical features and submit report. 2. Heard Mr.Kambampati Ramesh Babu, learned counsel for the petitioner. None appears for the respondent. 3. The respondent/plaintiff filed a suit for grant of permanent injunction against the defendants as they are trying to change the physical features of the plaint schedule land. Hence the respondent/plaintiff filed an application seeking relief to appoint an advocate/commissioner to note down the existing physical features in the petition schedule land. 4. The petitioner/1st respondent filed counter in the trial court denying all material averments and contended that there is a direction of this court in W.P.No.2003 of 2015 against the respondent/plaintiff that there shall be interim direction that the respondents shall not interfere with the petitioner's possession and enjoyment of the land in an extent of Ac. 0.62 cents in S.No.144 situated in Kothapalli Village, H/o Yerragondapalem Village and Mandal, Prakasam District without following due process of law. In view of the above said direction the petition for appointment of Advocate-Commissioner is not maintainable, hence liable to be dismissed. 5. Upon hearing on both sides, the learned trial court discussed at length and allowed the application by appointing the Advocate-commissioner to measuring the petition schedule land and directed the advocate-commissioner to file report along with plan. Assailing the same, the present C.R.P came to be filed. 6. During hearing learned counsel for the petitioner reiterated the contents urged in the petition and none appears for the respondents. 7. Learned counsel for the petitioner would contend that the trial court failed see the dispute of title to the assigned land, wherein the plaintiff and defendant are claiming assignment to the same property, which is to be resolved by the revenue authorities and not by way of civil suit and the trial court failed to see that the subject land is the subject matter of writ petition. Therefore appointment of Advocate-Commissioner to note down the existing physical features therein is unwarranted. 8. The trial court opines that there exists a dispute with regard to identity of suit property, court has to necessarily issue a commission for localizing the suit lands with the assistance of Surveyor, even in a suit for bare injunction. Therefore it is very much essential to issue a commission for localizing the suit land with the assistance of a surveyor and that allowed the application. 9. This court after perusal of the record, it is observed that the land an extent of Ac. 0.62 cents in S.No.144 of Kothapalli Village is shown in the Writ Petition No.2003 of 2015, whereas in the suit an extent of Ac. 1.02 cents in Sy.No.144/4 and 144/10 of Y. Kothapalli Village. There is difference in the extent and also survey number also. Further the contention of the 1st respondent/plaintiff that the respondents in the suit are trying to change the existing physical features in the petition schedule property. Therefore he filed a suit for bare injunction and in view of the urgency in the matter and that he seeks permission to appoint advocate commissioner to note down the existing physical features on record, which is sufficient and justifiable cause. The trial court also cited several decisions of this Court and also Hon'ble Apex Court at length and given proper findings. Therefore this Court needs no interference to re-consider the issue once again. It is essential to brought on record the evidence on ground by visiting an Advocate-commissioner to note down the exiting physical features in the petition schedule property to safeguard the interest of the respondent/plaintiff. Hence, I find that there is no force in the argument of the learned counsel for the petitioner and that the C.R.P is deserves to be dismissed. 10. In the result, the C.R.P is dismissed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.