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2025 DIGILAW 1519 (TS)

Puli Vajramma v. Nakirekanti Kishore

2025-11-17

RENUKA YARA

body2025
ORDER: RENUKA YARA, J. 1. Heard Mr. Kiran Palakurthi, learned counsel for the petitioner/plaintiff and Mr. N. Srinivas Yadav, learned counsel for the respondents/defendants. 2. This Civil Revision Petition is filed aggrieved by the order passed by the learned I Additional Junior Civil Judge at Miryalaguda in I.A.No.34 of 2022 in O.S.No.220 of 2015, dated 19.06.2023, wherein, the said petition filed by the respondents herein under Order 26, Rule 9 r/w Section 151 of CPC seeking appointment of an Advocate Commissioner was allowed by passing the following order: “7. In the result, petition is allowed. Sri M. Kumar Reddy, Advocate is appointed as Advocate Commissioner to measure and find out that whether the suit schedule land is in Sy.No.126 or in Sy.No.139 of Vemulapally Village with the help competent surveyor i.e., Vemulapally Mandal Surveyor to note down the physical features of the suit schedule land and prepare a plan and file the same along with his report. The fee of Advocate commissioner is fixed at Rs.5,000/- and Commissioner is directed to file the report within 30 days from the date of this order.” 3. The brief facts of the case are that the main suit in O.S.No.220 of 2015 was filed by the petitioner herein seeking perpetual injunction to restrain the respondents herein from interfering with the suit schedule property consisting of open place to an extent of Ac.0.09 Gts. and 27 sq.yds. in Sy.No.126 in which the residential house bearing door No.7-2 is constructed within Grampanchayat limits of Vemulapally Village and Mandal, Nalgonda District. The said suit is currently at the stage of respondents/defendants’ further evidence and at that stage, they have filed the petition under revision seeking appointment of an Advocate Commissioner to measure and fix up boundary stones to the suit schedule property and note down the physical features of the suit schedule land and permit the respondents to take photographs and video at the time of commission work. 4. 4. The petitioner herein opposed the said petition alleging that the suit filed is for injunction simplicitor, that the petitioner is claiming land in Sy.No.126 whereas respondents are claiming that the said land covers in Sy.No.139 and therefore, the attempt of the respondents to appoint an Advocate Commissioner to find out whether the suit land is in Sy.No.126 or 139 and to note down physical features according to the petitioner is collection of evidence through an Advocate Commissioner and the same is against settled principles of law. Further, it is pleaded that no reason is cited for appointment of an Advocate Commissioner to note down physical features and to fix boundaries. No extraordinary physical features are existing and there is a possibility of destroying or changing the existing structures and therefore, opposed the appointment of Advocate Commissioner. 5. Upon considering the case of both the parties, the learned Trial Court came to a conclusion that the petitioner herein is claiming the suit schedule land in Sy.No.126 whereas the respondents herein are claiming the suit schedule property to be situated in Sy.No.139 and that the petitioner has nothing to do with Sy.No.126. It is held that there is a dispute about the identity of subject land and therefore, it is necessary to note the physical features of suit schedule property and therefore, allowed the petition. 6. In grounds of revision, the petitioner pleaded that she is facing hardship due to appointment of Advocate Commissioner for getting the land surveyed as the respondents are making efforts to collect false evidence through Advocate Commissioner. The petitioner claims to be absolute owner and possessor of the suit schedule property by way of patta awarded by the Government. The petitioner further pleaded that the Trial Court has not considered the documents such as House Tax receipt, water tax receipt issued by the Grampanchayat, electricity bill payment receipts and land transfer certificate, etc. which show that the suit land is in Sy.No.126 but not in Sy.No.139. As such, prayed that the impugned order be set aside as there are no reasons necessitating the appointment of an Advocate Commissioner. 7. During arguments, the learned counsel for the petitioner submitted that in a suit for perpetual injunction, the burden lies on the party who approaches the Court to prove his/her possession as on the date of filing of the suit. 7. During arguments, the learned counsel for the petitioner submitted that in a suit for perpetual injunction, the burden lies on the party who approaches the Court to prove his/her possession as on the date of filing of the suit. Further, though the respondents have disputed the location of the suit land either in Sy.No.126 or 139, it is settled principle that boundaries prevail over survey number and extent and there is no dispute about the boundaries of the suit schedule property. It is further emphasized that the entire evidence is over and the matter is at the stage of respondents/defendants’ further evidence and at that stage, the petition under revision is filed without any just cause. Reference is made to the cross examination of DW1 wherein there is admission about the identity of the suit schedule property and its possession by the petitioner herein. The relevant portion is extracted and produced below: “I do not know whether my father received the documents pertaining to the field and house site and also signed as a receiver and handed over the same to brother in law. It is true after the purchase of it, my brother-in-law constructed two rooms in that site. It is true later they also got constructed two other rooms attaching to that above said two rooms. It is true there is a compound to the entire suit schedule property. It is true at the time constructing the two rooms, the compound wall is constructed. Witness adds that it was constructed by them. It is not true to suggest that there are not at all mud compound walls at the time of purchase of the suit schedule property and we did not construct any compound wall as I was a child at that time. It is true the cattle shed was also constructed while plaintiff and her family members are residing in that said house.” 8. In view of the above mentioned evidence where there is virtual admission about identity of the suit land within the confines of a compound wall, there can be no question of dispute about the identity of the land vis-à-vis survey number. As such, it is pleaded that the impugned order be set aside. 9. In view of the above mentioned evidence where there is virtual admission about identity of the suit land within the confines of a compound wall, there can be no question of dispute about the identity of the land vis-à-vis survey number. As such, it is pleaded that the impugned order be set aside. 9. The learned counsel for the respondents argued that the petitioner is claiming the suit land to be situated in Sy.No.126 whereas the said land is actually situated in Sy.No.139 which is far away. Reference is made to the plaint pleadings at paragraph No.5 wherein there is a pleading about the existence of the suit land in two bits i.e. Ac.0.09 Gts. and 27 sq.yds., and therefore, there is a need to appoint an Advocate Commissioner to identify the location of the suit schedule property in Sy.No.126 or Sy.No.139. 10. Upon considering the arguments of both the learned counsel, it is seen that the main suit is filed seeking perpetual injunction claiming to be in possession of suit schedule property which is Ac.0.09 Gts. and 27 sq.yds. of land with a residential house which is allegedly situated in Sy.No.126. Per contra, the case of the respondents is that the suit schedule land is situated in Sy.No.139 and that in the guise of simple sale deeds, the petitioner has encroached into the land of respondents. The respondents have filed the petition under revision for appointment of an Advocate Commissioner to ascertain the location of the suit schedule property in Sy.No.126 or 139 and the same was allowed. 11. As per settled principles of law, an Advocate Commissioner cannot be appointed in a suit for perpetual injunction for the purpose of ascertaining possession or identity of the property. In the instant case, the relief sought by the respondents in the Interlocutory application is to conduct survey, find out whether the suit schedule land is located in Sy.No.126 or 139 with the help of competent surveyor, to note down physical features and to prepare a plan. 12. Since the suit is filed seeking perpetual injunction, the burden of proof is on the petitioner herein to prove possession with reference to the boundaries of the property as on the date of filing of the suit by adducing relevant oral and documentary evidence. In case, there is failure, the petitioner would not be entitled to perpetual injunction. 12. Since the suit is filed seeking perpetual injunction, the burden of proof is on the petitioner herein to prove possession with reference to the boundaries of the property as on the date of filing of the suit by adducing relevant oral and documentary evidence. In case, there is failure, the petitioner would not be entitled to perpetual injunction. When there is a compound wall encircling the suit schedule land and its possession has to be proven, it does not stand to reason that an Advocate Commissioner should be appointed to ascertain the location of said property in a particular survey number. When the suit schedule property is identified with the help of boundaries, the extent and the survey number becomes secondary. In case, there is any encroachment on the part of the petitioner herein over the land of the respondents, the respondents have to seek relief in separate proceedings for recovery of possession as the land encroached if any is already encircled in a boundary wall. 13. At this juncture, in the present suit proceedings, no purpose will be served by appointing an Advocate Commissioner to ascertain the survey number of the suit schedule land. There are no grounds for appointment of an Advocate Commissioner and the impugned order is liable to be set aside. 14. Accordingly, this Civil Revision Petition is allowed and the order passed in I.A.No.34 of 2022 in O.S.No.220 of 2015, dated 19.06.2023 is set aside. Pending miscellaneous applications, if any, shall stand closed. No costs.