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2025 DIGILAW 1274 (TS)

S. Srinivas Rao v. M. Venkata Singaiah

2025-10-23

NARSING RAO NANDIKONDA

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ORDER: NARSING RAO NANDIKONDA, J. Heard Sri Ravi Teja , learned counsel representing Sri A.Veera Swamy , learned counsel for the petitioner and Sri V.V.Ramakrishna , learned counsel representing Sri Ch.Sai Gangadhar , learned counsel for the respondents. 2. The present Civil Revision Petition is filed under Article 227 of the Constitution of India aggrieved by the order of dismissal dated 03.08.2021 in I.A.No.118 of 2021 in I.A.No.47 of 2021 in O.S.No.314 of 2021, on the file of the Additional Judicial First Class Magistrate Special Mobile Court-cum-II Additional Junior Civil Judge, Sangareddy, rejecting the petitioner’s request for appointment of Advocate Commissioner for the limited purpose of noting down the physical features of the suit schedule property in I.A.No.118 of 2021. 3. Aggrieved by the same, the present petition is filed by the petitioner/plaintiff on the following grounds contending that the learned Trial Court erred in considering the application for appointment of Advocate Commissioner for limited purpose of noting down the physical features of the suit schedule property which is warranted. Further, the learned Trial Court was influenced by referring to the filing of the earlier suit O.S.No.319 of 2013 on the file of the Principal Senior Civil Judge at Sangareddy and erred in missing the crucial aspect with regard to the circumstances warranting filing of the present suit for injunction against the respondents herein and filing the present application I.A.No.118 of 2021 which it ought to have seen that as a fresh cause of action arose on 01.03.2021, when the respondent and their henchmen tried to interfere with his possession, much subsequent to the earlier suit and that it is not advisable to the petitioner/plaintiff to implead fresh parties or amend the suit keeping in view of the fresh cause of action. 4. It is further contended that the order passed by the trial Court suffers from non-application of mind and pleased to hold that the prayer herein is to note down the physical features of the suit schedule property and such a request cannot be construed as fishing out information, as such when it is for a limited purpose of noting down the physical features of the suit schedule property the appointment of Advocate Commissioner cannot be denied as held by this Court and no prejudice would be caused, if an Advocate Commissioner is appointed for the said limited purpose. 5. 5. The learned trial Court considered that the petitioner not being in possession of the said property cannot seek relief of appointment of Advocate Commissioner, though admittedly the suit itself was filed by the petitioner/ plaintiff for relief of perpetual injunction against respondents/defendants and their henchmen, employees or anybody restraining them from interfering with the case and peaceful possession of the petitioner/plaintiff over the suit schedule property. Though, the present suit itself is only for the purpose of bare perpetual injunction, the question arises that whether the Advocate Commissioner can be appointed in such suit where the relief sought is only for the bare perpetual injunction. 6. Learned counsel for the petitioner contended that the application filed by the petitioner is only for the purpose of noting down the physical features of said property but not for trespassing into the property of the respondents/ defendants. 7. Learned counsel for the respondents contended that the petitioners were never been in the possession and that the very suit itself was filed with all false allegations and averments and that earlier O.S.No.319 of 2013 was filed on the file of Hon’ble Senior Civil Judge at Sangareddy for declaration-cum- cancellation document i.e., agreement of sale-cum-General Power of Attorney (for short GPA) and sale deeds and perpetual injunction and the said suit was dismissed for default and petition for restoration vide I.A.No.214 is pending. It is also contended that respondent No.1 in the capacity of holder of agreement of sale-cum-general power of attorney with possession has sold away the suit schedule property to respondent Nos.3 and 4 for valid sale consideration. 8. Learned counsel for the respondents contended that the suit is for perpetual injunction and petitioner is not in the possession and the question of appointment of Advocate Commissioner for any purpose does not arise and also contended that the learned trial Court after going to into the merits of the case and after appreciating the entire contentions, has dismissed the petition. 9. It is contextual to refer to the judgments of this Court as relied upon by the learned counsel for the petitioner in P.SREEDEVI VS. 9. It is contextual to refer to the judgments of this Court as relied upon by the learned counsel for the petitioner in P.SREEDEVI VS. I.V.L.N.VENKATA LAKSHMI NARSIMHA PRASAD , [(2020) 6 ALD 99] , wherein in the said case there was a dispute between the land and the boundaries in the suit for declaration of title of the plaint schedule property and this Court was pleased to allow the application for the appointment of Advocate Commissioner. I.V.L.N.VENKATA LAKSHMI NARSIMHA PRASAD , [(2020) 6 ALD 99] , wherein in the said case there was a dispute between the land and the boundaries in the suit for declaration of title of the plaint schedule property and this Court was pleased to allow the application for the appointment of Advocate Commissioner. In an unreported judgment of this Court in C.R.P.No.1378 of 2020, the Co-ordinate Bench while considering the Judgments cited in KORADA MURALI V/S. SRINIVASA SAHU , [ 2020 (3) ALD 1 (AP)] and P.SREEDEVI’s case supra and also considering the Judgment cited in ARVIND KUMAR AGARWAL vs. LEGEND ESTATES PRIVATE LIMITED REPRESENTED BY ITS MANAGING PARTNER , KOKAPET VILLAGE, RANGA REDDY DISTRICT, 2015 (2) ALT 484 held that when there is a serious dispute regarding identity of the property or boundaries thereof, an Advocate Commissioner can be appointed even in the suit filed for injunction and also relying upon the judgment cited in SHAMEEM BEGUM vs. VENNAPUSA CHENNA REDDY AND ANOTHER , [ 2018 (2) ALD 297 ] came to the conclusion that the appointment of Advocate Commissioner was only to note down the physical features of the suit schedule property and thought it necessary to appoint the same in C.R.P.No.3845 of 2018, wherein there is no specific bar and there no hard and fast rule that Advocate-Commissioner cannot be appointed before commencement of trial or before passing an order granting temporary injunction in view of the fact that appointment of an Advocate Commissioner would help in disposing both I.A. and further another judgment of the High Court of Andhra Pradesh, Amaravati in C.R.P.No.1078 of 2019, wherein the learned Tribunal considering the judgments cited in the case of ARAVIND KUMAR AGARWAL vs. LEGEND ESTATES PRIVATE LIMITED , 2015 ALD (2 ) 206 and HARYANA WALK BOARD vs. SHANTI SARUP AND OTHERS , [(2008) 8 SCC : 2008 AIR SCW 2500] and VARALA RAMACHANDRA REDDY vs. MEKALA YADI REDDY AND OTHERS , [ 2010 (4) ALD 198 ] and also relying upon the judgments cited in the case of BANDI SAMUEL AND ANOTHER vs. MEDIDA NAGESWARA RAO , [ 2017 (1) ALT 493 ] , held that the order of the trial Court appointing an Advocate Commissioner to ascertain the boundaries and identity of the property considered it to be proper and the Court did not choose to interfere with the findings of the trial Court. Further, relied upon the judgment in the case of KORADA MURALI vs. SRINIVASA SAHU AND ANOTHER , wherein this Court after having considered the entire record and the contentions of both the counsel confirmed the order of the trial court appointing an advocate Commissioner in the suit filed for relief of permanent injunction restraining respondent No.1 from interfering with the peaceful possession and enjoyment of the plaint schedule property. 10. The petitioner, who is plaintiff in the said plaint, has contended that the defendants came to the suit schedule property along with JCB and tried to pull the shed and fencing in the suit schedule and tried to dig the suit land with the help of JCB and the watchmen of the plaintiff tried to resist the illegal acts of the defendants and their henchmen. 11. Learned counsel for the petitioner further contended that they are in possession of the suit schedule property and the interlocutory application is filed seeking for appointment of Advocate Commissioner only for the limited purpose of noting down the physical features of the suit schedule property and stated that no Advocate Commissioner can be appointed for fishing out the evidence when there is dispute regarding identity of location of the property and also dispute regarding boundaries. Law being settled that the Court can appoint an Advocate Commissioner when there is a dispute regarding identity of the very nature of the property for the purpose of knowing the physical features and boundaries of the said land or the open plot or the house structures in the suit schedule property. 12. The Court has the discretionary power for appointment of Advocate Commissioner depending upon the factual aspects and it differs from one case to another. In the suit filed by the petitioner/plaintiff, he stated that he is in possession of the suit schedule property and the defendants came along with JCB and threatened the watchmen and occupied the suit schedule property, whereas according to the counsel for the respondents, respondent No.1 sold the suit schedule property to respondent Nos.3 and 4 and delivered vacant and peaceful possession of the suit schedule property to them. Since then, they are in peaceful possession and enjoyment of the suit schedule property without any interference from anybody. Since then, they are in peaceful possession and enjoyment of the suit schedule property without any interference from anybody. Further, respondent Nos.3 and 4, being the purchasers, have sold away the suit schedule property to respondent No.2 and delivered vacant and physical possession to him. Having purchased the suit schedule property, respondent No.2 mutated his name in the village records and that the revenue authorities have also issued pattadar passbooks. Therefore, the respondents denied the allegations of the petitioner over the suit schedule property. 13. In respect of the present Revision, the only point which is required to be considered is whether there is necessity to appoint an Advocate Commissioner for the purpose of noting down the physical features. There is no quarrel regarding the said proposition of law laid down in the citations relied on by the petitioner. The Advocate Commissioner can be appointed for noting down the physical features and boundaries of the suit schedule property. This Court considering the entire material placed before the Court opines that no prejudice will be caused to the respondents, if an Advocate Commissioner is appointed only for the purpose of noting down the physical features of the suit schedule property. 14. The question of ascertaining the petitioner’s possession in the property should not be within the domain of the Advocate Commissioner and this Court also opines that the appointment of Advocate Commissioner is only for the limited purpose of noting down the physical features of the suit schedule property. 15. Hence, for the above said reasons, this Court is of the view that the present Civil Revision Petition filed by the petitioner deserved to be and is allowed by setting aside the order dated 03.08.2021 passed in I.A.No.118 of 2021 in I.A.No.47 of 2021 in O.S.No.314 of 2021. The learned trial Court is directed to appoint any Senior Advocate Commissioner from the panel of Lawyers by fixing appropriate fees as is prevalent and issue the warrant directing the Advocate Commissioner to note down the physical features of the suit schedule property along with the boundaries. If required, the Advocate Commissioner may take licensed assistance of Surveryor. The Advocate Commissioner shall not take note of the aspect as to who is in possession of the said lands. No order as to costs. Miscellaneous applications, if any, pending in this appeal shall stand closed.