Research › Search › Judgment

Telangana High Court · body

2025 DIGILAW 1019 (TS)

VadlakondaVenkatapathi v. Myakala Surya Prakash

2025-09-12

RENUKA YARA

body2025
ORDER : 1. This is a Civil Revision Petition filed by the petitioners/respondents aggrieved by the order dated 27.09.2024 passed by the learned Senior Civil Judge, Jagtial in I.A.No.448 of 2024 in O.S.No.16 of 2023, wherein a petition filed by the respondents/petitioners under Order 26, Rule 9 to appoint an Advocate Commissioner to demarcate the land in Sy.No.154 or 156, note down the physical features as well as its location to ascertain the suit survey number with the assistance of Mandal Surveyor, has been allowed. 2. Heard Sri Sathvik Makunur, learned counsel for the revision petitioners/respondents/defendants and Sri K. Shanthan Rao, learned counsel for respondents/petitioners/ plaintiffs. Perused the record. 3. The respondents herein filed suit for declaration of title and recovery of possession with respect to land in Sy.No.154 having VLT H.No.1-5- 203/79/1 admeasuring 818 sq.yds., situated at Ganeshnagar locality of Jagtial Town and District. The petitioners in their written statement pleaded that the suit land is situated in Sy.No.156 and is not part and parcel of Sy.No.154 and that they are not aware of the report given by the Mandal surveyor stating that the land comes under Sy.No.156 and no notice of survey is given to them by the Mandal Surveyor when the survey was conducted. Further, it is contended that the subject land is house site but not agricultural land. The petitioners filed counter alleging that the Mandal Surveyor on the direction of the District Collector submitted a report that the land comes under Sy.No.156. The respondents filed a petition on 08.12.2019 before the Collector, Jagtial in Prajawani, and in turn, the Collector communicated the same to the Commissioner, Municipality, Jagtial and after the directions from the Collector, the Commissioner, Municipality instructed the Town Planning Section (TPS) of Jagtial Municipality, wherein, TPS went to the site under dispute on behalf of site owners and in the presence of both parties, the TPS stopped the construction work at plinth level. The respondents requested the District Collector to direct the Surveyor to conduct the survey for identification of the survey number of disputed land. The respondent No.2 filed building permission application on 07.11.2019 online and verification and inspection was done regarding the ownership documents, link documents and boundaries as per the documents and site. An objection was raised by the respondents and therefore, the building application was returned. The respondent No.2 filed building permission application on 07.11.2019 online and verification and inspection was done regarding the ownership documents, link documents and boundaries as per the documents and site. An objection was raised by the respondents and therefore, the building application was returned. The respondents filed a writ petition vide W.P.No.26040 of 2019 before this Court for inaction of the Commissioner, Jagtial Municipality on their objection petition dated 08.11.2019. To prove their contention, the petitioners have called for the report of the Mandal Surveyor. The Mandal Surveyor report and its sketch map reveal that the suit schedule property is located in Sy.No.156 which belongs to the petitioners herein. The respondents are aware of the Mandal Surveyor report and therefore, claimed that the petition under revision is not maintainable. 4. Upon examining the case of both parties, the learned Trial Court allowed the petition appointing Advocate Commissioner to note down the physical features and to identify location of suit schedule property with respect to survey number, as such, the present Revision Petition is filed. 5. In grounds of revision, the petitioners contended that there was already a survey conducted at the behest of the District Collector to determine the identity of the same property and said report was furnished to the respondents, however, said aspect has not been dealt by the Trial Court. Further, it is contended that it is well settled legal position that an application to appoint an Advocate Commissioner under Order 26, Rule 9 of CPC cannot be used to collect or generate fresh evidence in their favour. The Trial Court did not consider its own order dated 18.12.2023 in I.A.No.197 of 2023, wherein grant of temporary injunction was denied for failure to establish prima facie case. On the basis of aforementioned grounds, the petitioners prayed that the impugned order be set aside. 6. During arguments in the Revision Petition, there was an issue about the maintainability of the Revision Petition as it had become infructuous. It is vehemently contended by the learned counsel for the revision petitioners that a misrepresentation was made about the revision petition becoming infructuous when the Advocate Commissioner report was not submitted before the Trial Court. Only upon filing of the revision petition, there was a hasty survey conducted and the report was submitted on 02.05.2025 only to defeat the revision petition. 7. Only upon filing of the revision petition, there was a hasty survey conducted and the report was submitted on 02.05.2025 only to defeat the revision petition. 7. The learned counsel for respondents pleaded that there was no false representation about the revision petition becoming infructuous, at best, a representation was made that the Advocate Commissioner has completed the survey with the help of Mandal Surveyor during pendency of the revision petition. It is vehemently denied that the Mandal Surveyor was influenced for conducting the survey of the suit schedule property for the sole purpose of defeating the rights of the petitioners under the present revision petition. However, it is agreed by both the counsel that the revision petition would become infructous only when the report is submitted and not prior to such an event. Since the Civil Revision Petition was filed much prior to the submission of the Advocate Commissioner report, it is agreed that the present revision petition is maintainable. 8. Coming to the merits of the case of petitioners, they represented that a survey of suit schedule property was conducted at the instance of respondents herein. When an application for building permission was submitted by them on 07.11.2019, survey was conducted in that regard at the instance of this Court demarcating the suit schedule property showing its location in Sy.No.156. Further, reference is made to the order passed by the Trial Court in I.A.No.19 of 2023 wherein the relief sought for grant of temporary injunction has been dismissed for failure to show prima facie case. In fact, it is held that the respondents have resorted to suppression of material facts and have approached the Court with unclean hands. Further, the petitioners filed copy of the affidavit filed by the respondents in W.P.No.26040 of 2019. In said writ petition, the prayer was to direct the municipality to take necessary action against the illegal construction in suit schedule property in Sy.No.154. 9. The learned counsel for the revision petitioners referred to judgment of this Court between Dammalapati Satyanarayana and others v. Datla Venkata Ramabhadra Raju @ D.V.R. Raju and another , 2006 (4) ALD 675 wherein, it is held that “Court has to identify the exact area of controversy and frame necessary issues. The parties, in turn, have to adduce oral and documentary evidence with reference to the issues, so framed. The parties, in turn, have to adduce oral and documentary evidence with reference to the issues, so framed. Unless these aspects are clear, appointment of an Advocate Commissioner would amount to an exercise to gather evidence …. If the report is submitted, even before evidence is adduced, a stage may come, where the whole trial would revolve around such report.” 10. The learned counsel for respondents filed written arguments to the effect that the suit is filed for declaration of title and recovery of possession, that the petitioners are claiming land to be part and parcel of Sy.No.156 whereas land is actually in Sy.No.154. The petitioners are relying upon the Mandal Surveyor Report of which no notice was given to the respondents. The existence of suit schedule property survey number 156 is not in the knowledge of the respondents and therefore, said report cannot be taken into consideration. An order was passed in the impugned I.A for appointment of Advocate Commissioner and report was submitted on 02.05.2025. In written arguments, it is contended that since the report is submitted, the revision petition has become infructuous. In that regard, reference is made to order of this Court in C.R.P.No.761 of 1956, wherein, it is held that the question as to when a Commissioner could be appointed should be within the wide discretion of the Trial Court, but it cannot be said that no Commissioner could be appointed before the issues are framed or the evidence is led. A further reference is made to judgment of this Court in CMA Nos.52 and 53 of 2020, wherein, this Court held that localization of suit schedule property cannot be refused. 11. The learned counsel for respondents referred to the order of this Court in CRP No.572 of 2023, wherein, it is held that there is no legal embargo on appointment of Advocate Commissioner in a suit for bare injunction where there is a serious dispute with regard to the identity and localization of suit schedule land and that an Advocate Commissioner can be appointed at any stage of the suit. A further reference is made to the order of this Court in CRP No.2567 of 2022, wherein, it is held that there is no specific bar for appointment of an Advocate Commissioner before commencement of trial or framing of issues. 12. A further reference is made to the order of this Court in CRP No.2567 of 2022, wherein, it is held that there is no specific bar for appointment of an Advocate Commissioner before commencement of trial or framing of issues. 12. In the instant case, the dispute between the parties arose in the year 2019 when the respondents herein alleged that the petitioners are making illegal construction in their land which is located in Sy.No.154. In that context, a complaint was given to Jagtial municipality to take action against the petitioners herein. When no action was taken, the respondents approached this Court vide W.P.No.26040 of 2019 and on that, survey was conducted through the Mandal Surveyor and said report came in favour of the petitioners and against the respondents to the effect that the disputed land is located in Sy.No.156 which belongs to the petitioners herein and not in Sy.No.154 as claimed by the respondents herein. Thereafter, a civil suit was filed vide O.S.No.16 of 2023 seeking declaration of title and recovery of possession. In the said suit, no reference is made to the prior litigation with respect to filing of writ petition or its disposal and allegation is made that the petitioners herein have forcibly dispossessed the respondents from the suit land on 05.03.2023 and therefore, suit is filed for declaration of title and recovery of possession. 13. An Advocate Commissioner was appointed by this Court at the instance of the respondents herein and a report is submitted, which shows that the suit schedule property is situated in Sy.No.156. The said report was submitted by the Mandal Surveyor K. Raju. As per said report, the suit schedule property is shown as located in Sy.No.156 and not in Sy.No.154 as claimed by the respondents herein. Then the suit is filed in the year 2023 having made unsuccessful efforts to stop the construction of the petitioners in the suit schedule property by way of giving complaint to the Commissioner, Jagtial Municipality and filing of writ petition. The suit is filed by completely suppressing the facts relating to the earlier litigation before this Court. Then the suit is filed in the year 2023 having made unsuccessful efforts to stop the construction of the petitioners in the suit schedule property by way of giving complaint to the Commissioner, Jagtial Municipality and filing of writ petition. The suit is filed by completely suppressing the facts relating to the earlier litigation before this Court. The respondents by suppressing the report submitted in the writ petition got the Advocate Commissioner appointed in the suit by filing the I.A under revision for fresh survey and new survey report shows that the location of the suit schedule property as partly in Sy.No.156 and partly in Sy.No.154. 14. It is an irony that the same Mandal Surveyor who submitted the survey report dated 04.12.2019 in the writ petition also conducted the survey through Advocate Commissioner appointed by the Trial Court vide impugned order and submitted a different report with respect to location of the suit schedule property. Only when the petitioners herein insisted that there is an earlier survey report which was conducted at the instance of the respondents and that second survey is conducted only to create evidence in favour of the respondents, the same is denied alleging that the respondents do not have knowledge about the survey report which is submitted earlier. This Court is of the considered opinion that it is the respondents who have initiated litigation against the petitioners by giving complaint to the Commissioner, Jagtial municipality, filed writ petition and suffered adverse order as the survey report was against them. Having suffered adverse orders, the respondents have initiated second round of litigation by filing a civil suit seeking declaration of title and recovery of possession. 15. When the earlier survey report is against their interest, a petition is filed by the respondents for appointment of Advocate Commissioner to create fresh evidence to support their case. When the same Mandal Surveyor conducted two surveys, one at the instance of this Court and one at the instance of civil court and gives two different reports, the genuineness of the reports has to be doubted. In the instant case, in case, the earlier report was in favour of respondents, they would not have denied knowledge and instead, would have relied upon the said report to seek declaration. In the instant case, in case, the earlier report was in favour of respondents, they would not have denied knowledge and instead, would have relied upon the said report to seek declaration. Only when the earlier Mandal Survey report is not in their favour, the respondents suppressing the earlier survey report got an Advocate Commissioner appointed through the impugned order to create fresh evidence. 16. The sequence of events do not inspire confidence in the case of respondents as they have not only suppressed the existence of earlier Mandal Surveyor Report but are choosing to rely upon the second mandal Surveyor Report only to suit their purpose. Said aspect was not considered by the Trial Court. While the Tril Court has concluded there is no prima facie case in favour of the respondents, has erroneously appointed an Advocate Commissioner giving scope for creation of fresh evidence which can come to the aid of the respondents. The same Mandal Surveyor conducted survey of the same suit schedule property at two different points of time giving two different reports with respect to location of the suit schedule property in different survey numbers and the same raises serious doubt about is conduct. 17. In any case, in view of existence of the earlier Mandal Surveyor Report, there was no need for conducting a second survey. As such, there are no merits in the order passed by the trial Court and the same is liable to be set aside. 18. In the result, the impugned order dated 27.09.2024, in I.A.No.448 of 2024 in O.S.No.16 of 2023, on the file of the learned Senior Civil Judge, Jagtial, is set aside and the Civil Revision Petition is allowed. As a sequel, Miscellaneous Petitions, pending if any, stand disposed of as infructuous.