Research › Search › Judgment

Telangana High Court · body

2025 DIGILAW 1193 (TS)

Kyama Venkateshwarlu v. A. Sushma

2025-10-10

RENUKA YARA

body2025
ORDER : 1. The Civil Revision Petition is directed against the order of the learned Junior Civil Judge at Kalwakurthy in I.A.No.1381 of 2021 in I.A.No.1100 of 2021 in O.S.No.436 of 2021, dated 16.04.2024, wherein, petition filed under Order 26, Rule 9 r/w 151 of CPC for appointment of an Advocate Commissioner to investigate the physical features of the suit schedule land within the limits of Ulapara Village, Vongur Mandal, has been dismissed. 2. Heard Sri T.L.Krishna Prasad, learned counsel for the revision petitioner/defendant No.3, Sri K. Venumadhav, learned counsel for respondent No.1/plaintiff and Sri Sangem Srinivas Reddy, learned counsel for the respondent No.2/defendant No.1. 3. The background facts giving rise to the filing of the revision petition are that respondent No.1 filed suit in O.S.No.436 of 2021 before the learned Trial Court seeking permanent injunction with respect to suit schedule property consisting of agricultural land in Sy.No.60/EE1 to an extent of Ac.2.00 Gts., situated in Ulpara Village, Vongur Mandal, Nagarkurnool District appended on the East by Vadike (Rain water channel), West: Land of J. Bondaiah, North: Land of P. Krishna Reddy and South: 20 ft. Bandla Bata (Cart way). In said suit, I.A.No.1100 of 2021 was filed seeking temporary injunction. In said I.A, the present I.A under revision is filed by the respondent No.1 with prayer as follows: “For all the reason stated in the accompanying affidavit, it is prayed that the Hon’ble court be pleased to appoint an Advocate Commissioner for making investigation the physical features of the suit schedule land situated within the limits of Ulpara (v), Vongur Mandal and to pass order or orders as the Hon’ble Court deems fit in the circumstances of case and in the interest of justice.” 4. The case of the respondent No.1/plaintiff is that she is the absolute owner and possessor of the suit schedule property having purchased it under registered sale deed document No.10509 of 2019, dated 16.09.2019. Further, her vendors have purchased the land under registered sale deed document No.2862 of 2016, dated 02.03.2016. The respondent No.1 claims to be in possession of the suit schedule property having developed it, having made it fertile and cultivating the same through her GPA holder-cum-father by raising kandi chenu. The respondent No.1 claims that petitioner and respondent No.2 herein are influential persons having muscle power and they have threatened to occupy the suit schedule property forcibly. The respondent No.1 claims to be in possession of the suit schedule property having developed it, having made it fertile and cultivating the same through her GPA holder-cum-father by raising kandi chenu. The respondent No.1 claims that petitioner and respondent No.2 herein are influential persons having muscle power and they have threatened to occupy the suit schedule property forcibly. Therefore, vexed with threat of dispossession, the suit for perpetual injunction is filed. 5. The case of the petitioner is that respondent No.1 is claiming to have purchased the suit schedule land from Muddamalla Ramulamma and respondent No.2 in the year 2019 who in turn purchased the land from Jajala Bondaiah in the year 2016. According to the petitioner, though registered sale deeds are executed, the vendors of respondent No.1 were not in possession of the suit schedule land and therefore, said land was not delivered to respondent No.1. The pleadings of respondent No.1 about raising kandi chenu is false. There is a ridge in land bearing Sy.No.60 running from North to South with four borewells with two borewells in working condition and paddy crop is raised. Therefore, in order to ascertain the physical features, the petition is filed to note down the physical features of land in Sy.No.60/EE1 to an extent of Ac.2.00Gts. of Ulpara Village, Vongur Mandal. 6. Having considered the case of both parties, the learned Trial Court held that in a suit for injunction, an Advocate Commissioner cannot be appointed to localize or note down physical features of the suit schedule property which amounts to collection of evidence. It is held that the petitioner/defendant No.3 did not plead in the written statement about physical features of the suit land and other lands, therefore, allowing the petition to demarcate the suit land would amount to collection of evidence and goes beyond the main relief. It is held that allowing the petition would lead to pre determination of the decree which will be passed only after full fledged trial. Further, it is held that the party who approaches the Court has to prove her case and it is not for the petitioner and respondent No.2 who have not filed a counter claim to prove their case. Therefore, the petition was dismissed. Aggrieved by the same, the revision is preferred. 7. Further, it is held that the party who approaches the Court has to prove her case and it is not for the petitioner and respondent No.2 who have not filed a counter claim to prove their case. Therefore, the petition was dismissed. Aggrieved by the same, the revision is preferred. 7. In grounds of revision, it is pleaded that the suit is filed for perpetual injunction with respect to suit schedule property in Sy.No.60/EE1 to an extent of Ac.2.00Gts. of Ulpara Village, Vongur Mandal. The judgment in case between J. Venkateshwar Rao v. Vijay Lakshmi , 2017 (5) ALT 630 is wrongly interpreted by the learned Trial court that the appointment of an Advocate Commissioner is for the purpose of collection of evidence when the relief sought is noting down physical features. In the said case, the point held was that unless first commissioner’s report is expunged, second advocate commissioner cannot be appointed. Further, in case between C. Veeranna v. C. Venkatachalam , 1958 (5) ALT 792 , it is held that an Advocate Commissioner can be appointed without issuing notice to the other side. There are several other judgments which laid down the legal ratio that an Advocate Commissioner can be appointed when there is dispute in respect of identification, location and measurement of land which is subject matter of the suit. 8. During arguments in revision, the learned counsel for the petitioner contended that the learned Trial Court dismissed the petition on the mistaken premise that the petition is filed for the purpose of collecting evidence when the prayer was for noting down physical features of the suit schedule property. It is argued that the suit is filed by respondent No.1 seeking perpetual injunction though she is not in actual possession of the suit schedule property. However, the petition to appoint an Advocate Commissioner was never meant for ascertaining the persons who are in possession of the suit schedule property, rather, the relief sought is to note down physical features and therefore, it is pleaded that the petition ought to have been allowed. Further, it is argued that the burden of proof is on the respondent No.1/plaintiff to prove her case but the petitioner and respondent No.2 who are defendants also can take steps to prove their case and there is no bar on taking such steps. 9. Further, it is argued that the burden of proof is on the respondent No.1/plaintiff to prove her case but the petitioner and respondent No.2 who are defendants also can take steps to prove their case and there is no bar on taking such steps. 9. Learned counsel for the petitioner relied upon orders of High Court of Judicature at Hyderabad in cases between Jajula Koteshwar Rao v. Ravulapalli Masthan Rao , 2016 (1) ALT 134 (S.B.) and Bandaru Mutyalu and another v. Pali Appalaraju , 2013 (6) ALT 26 (S.B.) . In the case of Jajula Koteshwar Rao (supra) , it is held that when there is an allegation of encroachment of land, an Advocate Commissioner can be appointed for local investigation as mere oral evidence will not aid either party to decide the issue of encroachment and such an appointment cannot be said to be for collection of evidence as the object of local investigation itself is to collect evidence. Further, in the case of Bandaru Mutyalu (supra) , it is held that where there is controversy as to identification, location or measurement of the land, local investigation can be done at an early stage by appointing an Commissioner to enable parties to proceed with trial as per report of Commissioner even in a suit filed seeking permanent injunction. He further relied on the judgment of this Court in case between P. Sreedevi v. IVLN Venkata Lakshmi Narasimha Prasad , 2020 (4) ALT 433 (D.B.) wherein it is held that the object of local investigation under Order 26, Rule 9 of CPC is to collect evidence at the instance of the party who relies on the same which evidence cannot be taken in Court but can be taken only from the peculiar nature, on the spot. He further relied on the judgment of the Hon’ble Supreme Court of India in case between Haryana Waqf Board v. Shanti Sarup and others , (2008) 8 SCC 671 wherein, it is held that when an application is filed for appointment of a local commissioner for demarcation of the suit land, the Court ought to consider whether in view of nature of disputes, whether local commissioner can be appointed for the purpose of demarcation of the suit land. 10. 10. While so, the learned counsel for the respondent No.1 argued that sole purpose of getting an Advocate Commissioner appointed is to collect evidence and such a recourse cannot be taken a suit for perpetual injunction. 11. The main suit is filed by respondent No.1 herein claiming to be owner and possessor of the suit schedule land to an extent of Ac.2.00 Gts., in Sy.No.60/EE1 of Ulpara Village, Vongur Mandal. When respondent No.1 who approached the Court is claiming to be owner and possessor of the suit schedule property, the burden of proof is on her to discharge the same. Per contra, the case of the petitioner and respondent No.2 is that respondent No.1 purchased the property under a registered sale deed without identifying the land on ground. It is the contention of the learned counsel for the petitioner that the land in Sy.No.60 is owned by only two people, one is the petitioner and the other is respondent No.2. There are no others having possession of the land in Sy.No.60, whereas, respondent No.1 herein is claiming to be in possession of Ac.2.00Gts. of land in Sy.No.60/EE1. Further, the claim of respondent No.1 about raising kandi chenu in suit land is disputed. Per contra, the case of petitioner is that there is a ridge across the land in Sy.No.60 demarcating the boundary of both the owners and that there are four borewells in the said survey number out of which two borewells are in working condition and paddy crop is raised. 12. In order to ascertain the existence of ridge and paddy crop, an Advocate Commissioner is sought to be appointed. The pleadings of the plaint are very simple to the effect that respondent No.1 is the owner and she is in possession of the suit land through her GPA/father and cultivating the same. The petitioner and respondent No.2 have disputed the possession of respondent No.1 and have also claimed that respondent No.1 purchased the land without identifying on ground in Sy.No.60. The petitioner and respondent No.2 have disputed the possession of respondent No.1 and have also claimed that respondent No.1 purchased the land without identifying on ground in Sy.No.60. Though there is a dispute about identification of the land, there is no prayer for ascertaining the location of the land of the petitioner/respondent No.2 on one hand and the land of respondent No.1 on the other hand, mere noting down of physical features without noting down the location of the suit survey number and the survey number claimed by the petitioner and respondent No.2 will not come to the aid of the Court in adjudication of the matter. Further, an Advocate Commissioner can be appointed when there is a claim of encroachment of certain land or identification of land by the party who approaches the Court. 13. In the instant case, there is no allegation of encroachment on the part of respondent No.1 and there is no allegation of any ambiguity with respect to identity of the suit land by respondent No.1. In the circumstances, it is for respondent No.1 to prove her case of ownership and possession. As already held mere noting down of physical features is not going to come to the aid of the petitioner when the real crux of the issue is possession over the suit schedule land. Therefore, this Court sees no reason to interfere with the impugned order passed by the learned Trial Court. As such, there are no merits in the Revision Petition and the same is liable to be dismissed. 14. Accordingly, the Civil Revision Petition is dismissed confirming the impugned order passed by the learned Junior Civil Judge, Kalwakurthy, I.A.No.1381 of 2021 in I.A.No.1100 of 2021 in O.S.No.436 of 2021, dated 16.04.2024. No costs. Consequently, connected miscellaneous petitions are closed.