Research › Search › Judgment

Telangana High Court · body

2025 DIGILAW 1203 (TS)

T. Steven Sanjay Raj (Died) v. Shobha Rani

2025-10-13

RENUKA YARA

body2025
ORDER : 1. This is a Civil Revision Petition directed against the impugned order passed by the learned II Additional Chief Judge, City Civil Court, Hyderabad in I.A.No.939 of 2022 in O.S.No.677 of 2012, dated 16.07.2024, wherein, a petition filed to reject the report dated 18.03.2023 filed by the Advocate Commissioner in I.A.No.939 of 2022 has been closed. 2. Heard Sri C. Kumar, learned counsel, learned counsel for the revision petitioners/defendant Nos.3 to 6 and Sri Nivarthi Mruthyunjaya, learned counsel for the respondent No.1/defendant No.1. 3. The background facts giving rise to filing of Civil Revision Petition are that the main suit in O.S.No.677 of 2012 was filed by the deceased respondent No.2/plaintiff seeking partition and separate possession against respondent No.1 and the deceased petitioner No.1. Said suit was decreed in the year 2014. There was a need to separate the property by metes and bounds and therefore, petition was filed in I.A.No.939 of 2022 by respondent No.1/ defendant No.1 for appointment of an Advocate Commissioner. Said petition was allowed and an Advocate Commissioner has been appointed to measure the suit schedule property by metes and bounds. Said Advocate Commissioner filed the report on 18.03.2023 after executing the warrant. The petitioners/defendant Nos.3 to 6 opposed the Advocate Commissioner Report on the ground that they have not been issued with notice and therefore, the Advocate Commissioner report is liable to be set aside. Said objection was over-ruled by the learned Trial Court vide impugned order dated 16.07.2024. Aggrieved by the same, the present Civil Revision petition is filed. 4. In grounds of revision, it is pleaded that the Commissioner’s Report is vitiated on account of non-service of notice on the petitioner Nos.2 to 5/defendant Nos.3 to 6, who are legal heirs of deceased petitioner No.1/defendant No.2. Due to non-service of notice to the petitioners, their valuable rights are affected. There is a specific direction by the learned Trial Court to the Advocate Commissioner to issue prior notice to the counsel for the petitioners and the counsel for respondent Nos.1, 3 to 5 through registered post intimating them about the date and time of execution of the commission. 5. In the Advocate Commissioner report, it is mentioned that notice is given to petitioner No.1 and to the counsel and was also called over phone to visit the suit schedule property. 5. In the Advocate Commissioner report, it is mentioned that notice is given to petitioner No.1 and to the counsel and was also called over phone to visit the suit schedule property. It is further mentioned that the counsel for petitioner No.1 reported that the clients are not in touch and she may not attend the said commission. It is further mentioned that the counsel informed that notice of the commission may be given to the party directly and therefore, notice was given to petitioner No.1 through registered post and the same was returned as ‘addressee expired, hence, returned to sender’. A reference is made to the Advocate Commissioner’s report about petitioner No.1 along with his wife and children residing in the ground floor and their absence at the time of execution of the commission but said fact was not noticed by the learned Trial Court and proceeded to observe that there is no pleading of whether petitioner Nos.2 to 5 were residing in the ground floor or not and whether they were present or not when the Advocate Commissioner visited suit schedule property. It is pleaded that there is no allegation about petitioner Nos.2 to 5 not residing in the ground floor. The petitioner No.1 actually died and therefore, the contents of the report about petitioner No.2 residing with his wife and children in the ground floor show bias and that the report is full of falsehoods and therefore, said report needs to be rejected. There is a variance of 5 sq.yds. in the suit schedule property, but, there is no whisper about such variance in the entire report filed by the Advocate Commissioner. Due to variance, according to the petitioners, the report ought not to have been accepted. The respondent No.1/plaintiff expired leaving his wife and children and they were brought on record before the learned Trial Court vide order dated 20.02.2024 in I.A.Nos.155 and 156 of 2023. The cause title in I.A.Nos.938 and 939 of 2022 does not show the LRs of the deceased respondent No.1 and said action shows that the learned Trial Court has not noticed the same while passing the impugned order. On the basis of aforementioned grounds, the impugned order is liable to be set aside. 6. During arguments in revision, the learned counsel for the petitioners referred to the report dated 18.03.2023 of the Advocate Commissioner. On the basis of aforementioned grounds, the impugned order is liable to be set aside. 6. During arguments in revision, the learned counsel for the petitioners referred to the report dated 18.03.2023 of the Advocate Commissioner. Reference is made to page No.45 of the material papers where notice was issued by the Advocate Commissioner to T. Steven Sanjay who died and is represented by his legal heirs i.e. petitioner Nos.2 to 5 herein. Further reference is made to page Nos.46 and 47 of the material papers which show that the registered post sent to the deceased T. Steven Sanjay Raj has been returned as ‘Addressee deceased’. A perusal of the registered post at page No.46 shows that the registered post is addressed to “T. Steven Sanjay Raj (Rep. by his LRs T. Martha & others)”. Said registered post is returned as ‘addressee expired, returned to the sender’. According to the learned counsel for the petitioners, the Advocate Commissioner utterly failed in issuing notice to the petitioners herein., the warrant was executed in their absence and therefore, the Commissioner report has to be set aside. 7. Learned counsel for respondent No.1/defendant No.1 opposed the revision petition on the premise that the learned Advocate Commissioner has sent the notice to the address of the deceased T. Steven Sanjay Raj where his legal heirs are residing and therefore, no irregularity took place in commission of the warrant. 8. A perusal of the grounds of revision shows that the reason for filing the Revision petition is execution of warrant by the Advocate Commissioner without issuing proper notice to the revision petitioners and thereby, there is a prejudice caused to the rights of the petitioners. The second ground for opposing is that the Commissioner report is that the Advocate Commissioner failed to comply with the directions given by the learned Trial Court i.e. issuing notice to the counsel for respondent Nos.1, 3 to 5 and petitioners herein and then executing the commission. The LRs of the deceased T. Steven Sanjay Raj were brought on record in the year 2019 but the registered post is addressed to a dead person and said lapse on the part of the commissioner according to the petitioners amounts to exceeding the jurisdiction while execution a warrant. The LRs of the deceased T. Steven Sanjay Raj were brought on record in the year 2019 but the registered post is addressed to a dead person and said lapse on the part of the commissioner according to the petitioners amounts to exceeding the jurisdiction while execution a warrant. Further, there is a grievance about Advocate Commissioner stating that T. Steven Sanjay Raj along with his wife and three children living in the ground floor when said Steven Sanjay Raj died in the year 2019 and the Commissioner report is of the year 2023. 9. An examination of notice issued and postal receipt shows as if the notice is addressed only to deceased person but the actual postal cover shows that the notice is addressed to T. Steven Sanjay Raj represented by his legal heirs T. Martha and others address. The above address clearly shows that T. Steven Sanjay Raj is not available and he is represented by the legal heirs consisting of his wife T. Martha and minor children. Another important point to be noted is that the legal heirs of Late T. Steven Sanjay Raj are residing in the same residence as that of respondent No.2/plaintiff. The residence to which the notice is sent and the venue of execution of commission is the same residence i.e. H.No.12-2-827/10/2/1, Kanthinagar, Mehdipatnam, Hyderabad. When the legal notice in the name of the deceased person was sent to the address of the petitioners herein, it is the petitioners who would receive the same and then report to the postman about the death of Late T. Steven Sanjay Raj. A question arises whether the legal heirs of Late T. Steven Sanjay Raj who refused to receive the postal cover on account of death of T. Steven Sanjay Raj should receive the same to peruse the contents. The sender’s address on the postal cover shows reference of an Advocate and therefore, it is a convenient to return the postal cover on the ground of death of T. Steven Sanjay Raj. Alternatively, there was none in the house when the postman visited the address of Late T. Steven Sanjay Raj and therefore, the postal envelope is returned as the addressee expired. 10. Alternatively, there was none in the house when the postman visited the address of Late T. Steven Sanjay Raj and therefore, the postal envelope is returned as the addressee expired. 10. Next, it is observed by the learned Trial Court that there is no reference to the absence of the petitioners when the commission was executed by the Advocate Commissioner with the help of Surveyor. The Commissioner report no doubt makes a reference to the Advocate Commissioner giving notice to one counsel Renuka, calling her over phone and said counsel informing that she is not in contact with the party and therefore, to inform the party directly. 11. In this fact situation, it is to be examined whether any prejudice was caused to the petitioners on account of execution of commission in their absence. Firstly, the Commissioner was appointed to visit the suit schedule property and to give modalities and feasibility regarding partition of the suit schedule property in consonance with the terms of preliminary decree and to file report along with plan and lineal measurements. In this commission, the only responsibility of the Advocate Commissioner was to expedite the modalities and feasibility of the partition of the suit schedule property as per the terms of preliminary decree by taking lineal measurements of the suit schedule property and submit a report along with sketch plan. For this purpose, the service of surveyor has been engaged. While taking mere measurements of the property which is to be partitioned, irrespective of presence of any of the party, the measurements by an official surveyor would not change. The measurements would have remained the same irrespective of the presence of the petitioners herein. While claiming that their valuable rights are affected, no reason is stated as to in what manner the rights of the petitioners are affected. The absence of petitioners while execution of commission i.e. taking measurements of the suit schedule property would hardly affect their rights which are crystallized in the preliminary decree passed by the Court. Therefore, this Court is of the considered view that the present Civil Revision Petition is filed on illusory and frivolous ground of prejudice being caused to the rights of the petitioners, however, there was no such occasion. As such, there are no merits in the Civil Revision Petition and the same is liable to be dismissed. 12. Therefore, this Court is of the considered view that the present Civil Revision Petition is filed on illusory and frivolous ground of prejudice being caused to the rights of the petitioners, however, there was no such occasion. As such, there are no merits in the Civil Revision Petition and the same is liable to be dismissed. 12. Accordingly, the Civil Revision Petition is dismissed confirming the impugned order passed by the learned II Additional Chief Judge, City Civil Court, Hyderabad, in I.A.No.939 of 2022 in O.S.No.677 of 2012, dated 16.07.2024. No costs. Consequently, connected miscellaneous petitions are closed.