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2025 DIGILAW 1450 (TS)

Mengre Babu Rao v. Agge Poshakka

2025-11-11

B.R.MADHUSUDHAN RAO

body2025
ORDER : 1 . This Civil Revision Petition is filed under Article 227 of Constitution of India assailing the order dated 08.09.2022 passed in I.A.No.210 of 2022 in O.S.No.26 of 2015 by the learned Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Asifabad. 2. Petitioner herein is petitioner No.3 - plaintiff No.3; respondent Nos. 3 to 9 herein are the other petitioners-plaintiffs and respondent Nos.1 and 2 herein are the respondents in I.A.No.210 of 2022. 3.1 Learned counsel for the petitioner submits that the order passed by the learned trial Court suffers from legal infirmities and not in accordance with the procedure. The learned trial Court ought to have seen that appointment of Advocate Commissioner is just and necessary for the fair adjudication of the suit for declaration of title and recovery of possession and failed to see that the respondent No.2-defendant No.2 is claiming his land on the northern side of the suit property but not willing for appointment of Advocate Commissioner to measure the suit land on technical grounds for collecting evidence. 3.2 The learned trial Court ought to have seen that the petition filed by the petitioner herein is neither for recovery of possession nor for deciding the factum of possession but for identification of boundaries and the extent of land in illegal possession of defendant No.2 (respondent No.2 herein) is in Sy.No.236/A. 3.3 The learned trial Court ought to have seen that the factum of illegal possession of Ac.1.00 cents of petitioner’s land is not denied but the quantum of possession of suit schedule land is exceeded by the respondent No.2-defendant No.2 to an extent Ac.1-60 cents without looking into the boundaries of the suit schedule property. Counsel to substantiate his contentions has relied on the decisions in case of (i) Haryana Waqf Board v. Shanti Sarup and others , 2008 (8) SCC 671 and (ii) Bandaru Mutyalu and another v. Palli Appalaraju , 2013 (6) ALT 26 . 4 . Learned senior counsel for the respondents submits that the learned trial Court has properly appreciated the facts of the case and rightly dismissed the application filed by the petitioner for appointment of Advocate Commissioner, no interference is call for. Counsel to substantiate his contentions has relied on the decision in the case of Arvind Kumar Agarwal v. Legend Estates (P) Limited, Kokapet Village, Ranga Reddy District , 2015 (2) ALT 484 (S.B.) 5. Counsel to substantiate his contentions has relied on the decision in the case of Arvind Kumar Agarwal v. Legend Estates (P) Limited, Kokapet Village, Ranga Reddy District , 2015 (2) ALT 484 (S.B.) 5. Petitioner herein has sworn the affidavit in I.A.No.210 of 2022, wherein he stated that respondent No.2 herein has filed his written statement in the suit and claiming that he is in possession of Ac.1.60 cents out of Sy.No.236/A and he is not in possession of suit land. Respondent No.2 has purchased Ac.1.60 cents of land from defendant No.1 (Respondent No.1 herein), which she has purchased from his father and the same is situated on the North of the suit land and prayed to appoint Advocate Commissioner assisted by the technical man to find out whether defendant No.2 (respondent No.2 herein) is in possession of the Ac.2.60 cents of land in Sy.No.236/A inclusive of suit schedule land admeasuring Ac.1.00 cents situated at Jankapur village. 6. Respondents have resisted the said application by filing counter and the learned trial Court has dismissed the same which is impugned in the Civil Revision Petition. 7 . Power of the High Court under Article 227 of Constitution of India is supervisory and is exercised to ensure courts and tribunals under its supervision act within the limits of their jurisdiction conferred by law. This power is to be sparingly exercised in cases where errors are apparent on the face of record, occasioning grave injustice by the court or tribunal assuming jurisdiction which it does not have, failing to exercise jurisdiction which it does have, or exercising its jurisdiction in a perverse manner (See: K. Valarmathi and Others Vs. Kumaresan , 2025 SCC OnLine SC 985). 8. Petitioner herein is plaintiff No.3 in O.S.No.26 of 2015 and respondent No.4 to 9 herein are the other plaintiffs. They filed a suit for declaration of title and recovery of possession in respect of land to an extent of Ac.1.00 cents in Sy.No.236/A situated at Janakpur Shivar of Asifabad Mandal. Kumaresan , 2025 SCC OnLine SC 985). 8. Petitioner herein is plaintiff No.3 in O.S.No.26 of 2015 and respondent No.4 to 9 herein are the other plaintiffs. They filed a suit for declaration of title and recovery of possession in respect of land to an extent of Ac.1.00 cents in Sy.No.236/A situated at Janakpur Shivar of Asifabad Mandal. It is stated in the plaint in para No.7 that originally the suit is filed for declaration of title and recovery of possession of Ac.2-20 cents of land in Sy.No.236/A. Later on account of compromise the suit was withdrawn against the defendant No.1 (respondent No.1 herein) to an extent of Ac.1.20 cents, which was in his position and the remaining area of Ac.1.00 cents of land is in illegal possession of defendant No.2 (respondent No.2 herein) bounded as East: Road leading to Chandrapur, West: land of Sayyed Hakeem Ansari, North: land of defendant No.2 and South: Road leading to Kerameri. 9. Respondent No.2 herein is defendant No.2 in the suit and he filed his written statement contending that the petitioners are not entitled for recovery of possession. 10. In Haryana Waqf Board the Supreme Court held that in case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 of the C.P.C. 11. In Bandaru Mutyalu the High Court observed that ‘Appointment of Commissioner – In situations where there is controversy as to identification, location or measurement of the land, local investigation be got done at an early stage by appointing a Commissioner to enable parties to proceed with trial as per report of Commissioner.’ 12. In Arvind Kumar Agarwal the High Court observed that ‘the petitioner has given specific boundaries to his property. Therefore, the initial burden lies on him to prove the identity of his property by adducing his own evidence. It is only after both the parties adducing their respective evidence, if any ambiguity prevails with reference to the identity of the property, that the Court on its own or on the application of either party, may appoint an Advocate Commissioner. In my opinion, in a case of this nature, an application for appointment of an Advocate-Commissioner at the threshold itself cannot be entertained as the same will amount to gathering evidence.’ 13. In my opinion, in a case of this nature, an application for appointment of an Advocate-Commissioner at the threshold itself cannot be entertained as the same will amount to gathering evidence.’ 13. It is apt to mention here that the petitioner along with other plaintiffs have mentioned in the plaint in para No.6 that the Mandal Surveyor has conducted demarcation as per the records of revenue, village map, Pahani Patrikas and fixed the boundaries in the presence of adjacent cultivators and witnesses on 13.01.2015. As per the demarcation, it is clear that defendant Nos.1 and 2 in the suit (respondent Nos.1 and 2 herein) have occupied the remaining extent of land i.e., Ac.1-55 cents. 14 . The learned trial Court in its order observed in para No.5 that the appointment of Advocate Commissioner with the help of a technical man to measure the suit land amounts to nothing, but, adducing evidence otherwise than by leading evidence by the petitioner which is not permissible, particularly in the facts of the present case. 15. I have gone through the decisions cited by the learned counsel for the petitioner, I find that they are distinguished from the facts of the present case and thus, the ratio of those cases would not apply to the case of hand. 16. The prayer made in the application is for appointment of Advocate Commissioner to measure the property of the Respondent No.2 i.e., Ac.2-60 cents, which includes the suit scheduled property. 17 . As stated supra, the scope of the High Court under Article 227 of Constitution of India is limited. 18 . The learned trial Court has properly appreciated the contentions raised by the parties therein and rightly dismissed the application for appointment of Advocate Commissioner. This Court is of the view that no interference is called for and the petitioner has not made out any case in the Civil Revision Petition. 19 . In view of the reasons stated above, there are no merits in the Civil Revision Petition and the same is liable to be dismissed and is accordingly dismissed. There shall be no order as to costs. Interim orders if any shall stand vacated. Miscellaneous Petitions shall stand closed.