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2025 DIGILAW 1585 (TS)

SUVARNA BAI v. A. NARASAMMA

2025-11-20

NARSING RAO NANDIKONDA

body2025
ORDER : 1. This Civil Revision Petition is filed under Article 227 of Constitution of India, being aggrieved by the order passed in I.A.No.1032 of 2017 in O.S.No.1900 of 2010 on the file of Principal Senior Civil Judge, Ranga Reddy District at L.B. Nagar. 2. Heard Ms.P.Vijayalakshmi, learned counsel representing Sri G.Dhananjai, learned counsel for the revision petitioner and Sri Aravind, learned counsel representing Sri S.Venkatachlam, learned counsel for the respondent. The petitioner herein who is defendant in the suit and the respondent herein who is plaintiff in the suit. 3. Brief facts of the case are that the plaintiff herein filed a suit seeking a decree for directing the defendant to vacate and hand over possession of suit schedule property to the plaintiff and other reliefs pending the suit. The petitioner herein filed an application under Order XXVI Rule 9 of Code of Civil Procedure, 1908 vide I.A.No.1032 of 2017 in O.S.No.1900 of 2010, seeking appointment of an Advocate Commissioner to inspect and survey the Suit Schedule Property with the assistance of Government Surveyor. It is contended that the petitioner is the absolute owner and possessor of Plot bearing No.289 and 290 part, admeasuring 150 sq.yards on Sy.Nos.393 and 394 situated at Shivanagar, Kanojiguda Village, Alwal Municipality, R.R.District. 4. The respondent constructed a house in the suit plots vide bearing H.No.30-39/21 in part of Sy.No.400 of Shivanagar, Kanojiguda Village, Alwal Municipality, R.R.District. It is contended that the respondent is an illegal occupant of the suit plot and constructed house in the suit plot covered by Sy.No.393. 5. The learned counsel for the respondent filed counter denying the averments made in the petition and contended that appointment of an Advocate commissioner amounts to collection of evidence, which is not permissible under law. It is also contended that the oral evidence of PW1 and PW2 and the pleadings of the petitioner are unsupported by documents, and the documents relied upon are inadmissible in evidence as they are only notarized documents and not registered as required by law. 6. It is also contended that the oral evidence of PW1 and PW2 and the pleadings of the petitioner are unsupported by documents, and the documents relied upon are inadmissible in evidence as they are only notarized documents and not registered as required by law. 6. Having heard both the parties, the learned trial Court have came to a conclusion that, keeping in view of the contention of the respondent that he never encroached the alleged plots of the petitioner, and no prejudice could be caused to the defendant, if an Advocate Commissioner is appointed for inspection and survey of the suit land with the help of Local Surveyor, the application was allowed and an Advocate Commissioner was appointed. 7. Being aggrieved by the same, the present revision is filed contending that the learned Judge failed to consider the pleadings of the plaintiff alleging encroachment by the defendant. It is contended that as it is a simple suit filed by the plaintiff for recovery of possession of the Suit Schedule Property alleging that the plaintiff purchased the plot No.289 and 290 purporting to be an Agreement of Sale and though it is contended that the said dispute the said title of the plaintiff on the ground that it is only notarised document and also contended that the said document is hit by the provision of Registration and Stamp Act and also Transfer of Property Act, and no rights will be accrued to the plaintiff. It is further contended that the learned trial Court ought not to have appointed an Advocate Commissioner though there was no materials placed by the petitioner/plaintiff and it barely amounts to collection of evidence. 8. Heard the learned counsel appearing for both parties. Upon considering the rival contentions and the material on record, the point that arises for consideration is: 1. Whether the Trial Court committed any error in appointing an Advocate Commissioner for inspection, survey, and identification of the suit schedule property? 2. Whether such appointment amounts to collection of evidence? 9. 8. Heard the learned counsel appearing for both parties. Upon considering the rival contentions and the material on record, the point that arises for consideration is: 1. Whether the Trial Court committed any error in appointing an Advocate Commissioner for inspection, survey, and identification of the suit schedule property? 2. Whether such appointment amounts to collection of evidence? 9. As the petitioner/plaintiff herein claiming title of the suit schedule property basing on the agreement of sale which was purchased by Uday Kumar from one V.Damodar Reddy, who is a vendor and the plaintiff herein in turn sold the property under the agreement of sale to the petitioner/plaintiff herein in the year 1987, and on perusal of the said agreement though it is rightly contended by the learned counsel for the defendant herein that it is a notarised document though the learned counsel for the plaintiff contends that the stamp duty penalty was already paid and the same was impounded, but it is an unregistered document and it shows that the said property which is said to have been purchased by the defendant is described as below. The revision petitioner herein and the defendant said to have purchased the property bearing H.No.30- 39/21, on plot Nos.5 part & 6, forming part of Survey No.400, admeasuring 300.00 Sq.yards or 250.80 Sq.Mtrs, situated at Khanajiguda, under Alwal Municipality, Malkajgiri Mandal, Ranga Reddy District with the boundaries as follows: North by: 20’ -0” Wide Road South by: Neigh’s PLOT East by: 30’ -0” Wide Road West by: House on the Plot No.5 Part 10. The main contention of the plaintiff is that the defendant has encroached upon the part of the plaintiff’s property and constructed the house. The claim of the defendant is that he has purchased the said property by way of the sale deed and that he is in possession of the same by exercising rights as lawful owner of the said suit property. As per the schedule mentioned above, as it appears that both properties are distinct from each other and are situated in Sy.Nos.393, 394 at Shivanagar, Kanojiguda Village, Alwal Municipality, Ranga Reddy District. As per the schedule mentioned above, as it appears that both properties are distinct from each other and are situated in Sy.Nos.393, 394 at Shivanagar, Kanojiguda Village, Alwal Municipality, Ranga Reddy District. Admittedly, the properties which are claimed by both the parties are distinct and different in survey numbers, and it appears from the record that there is a dispute as to the identification of the property where both claim that the suit schedule property claiming that it pertains to the plaintiff as well as the defendant, and the crux of the case would be. Whereas as per defendant’s schedule property is on Plot No.5 part & 6, forming part of Survey No.400 with the boundaries mentioned above. 11. Admittedly, as there is a dispute regarding the identity of the property, the learned counsel for the revision petitioner contends that as there is a title dispute and also a dispute regarding possession, admittedly the defendant is in possession, and as such the present suit is filed for seeking possession of the suit schedule property. As such, the question of who is in possession of the property is not the dispute before the trial Court nor the same has to be further ascertained by way of any affidavit, and further the relief which is claimed is for recovery of possession. Unless and until the said property is identified and also the location of the property is ascertained, even if the suit is decreed, it may cause hardship for executing the decree at a later point of time. And so as to see and to put an end to the litigation, though the learned counsel for the revision petitioner contends that the same could be looked into at the time of execution of the decree, but that argument cannot be accepted. 12. As such, on considering the entire material placed, appointment of Advocate Commissioner does not amount to collection of evidence and no prejudice will be caused to the revision petitioner/defendant herein if the Advocate Commissioner is appointed, and the entire dispute between the parties can be ended based on the property identification of the said land and the location of the said plot. As such, this Court is of the opinion that no error or wrong has been committed by the trial Court in appointing the Advocate Commissioner for the purpose of locating or identifying the suit schedule property with the help of the respective sale deeds and the boundaries thereon. The only correction is that, in view of the law laid down, the assistance of a Government Surveyor cannot be taken for locating the said plot. This Court is of the opinion that in such cases the Advocate Commissioner shall seek the assistance of the Licensed Surveyor and not to depend upon the Government Surveyor. 13. With the said observations, this Court holds that the learned trial Court has not committed any error in allowing the application, and I do not see any grounds to interfere with the findings of the trial Court. Hence, for the said reasons, the points are answered in favour of the respondent/plaintiff and against the revision petitioner/defendant. In the result, the revision petition is dismissed, confirming the order passed by the learned Principal Senior Civil Judge, Ranga Reddy District, at L.B. Nagar, in I.A.No.1032 of 2017 in O.S.No.1900 of 2010. Miscellaneous petitions, if any, pending in this revision petition shall stand closed.