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2025 DIGILAW 34 (TS)

K. Indira v. Nellutla Veeresh Kumar

2025-02-05

LAXMI NARA YANA ALISHETTY

body2025
ORDER : Laxmi Narayana Alishetty, J. This Civil Revision Petition is filed assailing the order dated 09.02.2024 in I.A.No.1356 of 2023 in O.S.No.614 of 2018 passed by the XVII Additional Senior civil Judge, City Civil Court, Hyderabad. 2. Heard Sri H.Venugopal, learned senior counsel representing Sri N.Mukund Reddy, learned counsel for petitioners on record, and Sri Mirza Saifulla Baig, learned counsel for respondents. 3. The petitioners herein are the defendant Nos.18, 22, 23, 24 25; respondent no.1 herein is the plaintiff No.1 before the trial Court. For convenience, hereinafter the parties are referred to as they are arrayed in the suit. 4. Brief facts relevant for adjudication of the present Civil Revision Petition are that plaintiff filed the suit for partition, declaration and separate possession against the defendants in respect of property bearing Municipal Nos.16-11-16/M/1, 16-11- 16M/2, 16-11-16/M/3, 16-11-16/1A and 16-11-16/1/B admeasuring 1193 square yards in Sy.No.58 of Prashant Nagar, Teegalguda, Moosarambagh, Malakpet, Hyderabad, which is referred as schedule ‘A’ property and the property admeasuring 478 square yards in Sy.No.58 of Prashant Nagar, Teegalguda, Moosrambagh, Malakpet, Hyderabad, which is referred as schedule ‘B’ property. 5. The specific case of the plaintiff is that schedule properties belong to their grandfather Nellutla Veeraiah & Kummari Veeraiah, who died in the year 1959, leaving behind two wives and four sons, i.e., plaintiff and defendant Nos.2 to 4. Defendant Nos.5 to 11 are the grandsons and daughters of N.Veeraiah. Plaintiff sought proportionate share in the schedule ‘A’ &’B’ properties i.e., 47.72 square yards in schedule ‘A’ property and 23.9 square yards in schedule ‘B’ property, which were ancestral properties. 6. The defendant Nos.13, 18, 20 to 22 and 25 filed the written statement denying plaint averments and have taken a specific stand that the schedule ‘B’ property is not in existence. It is further contended that question of partition of the schedule properties does not arise inasmuch as they are not available for the partition; that schedule ‘A’ property was sold by defendant No.1 along with his mother and brothers in the year 1984 and 1985, by the time, the plaintiff was aged about 8 or 9 years and therefore, it is highly improbable that he would have confronted about the sales made by his father, i.e., defendant No.1, along with others. 7. 7. During the pendency of the suit, plaintiff filed I.A.No.1356 of 2023 under XXVI Rule 9 read with Section 151 of CPC praying the trial Court to appoint an Advocate-Commissioner to note down the physical features existing over schedule ‘B’ property, which is adjacent to schedule ‘A’ property i.e., on the Northern side of schedule ‘A’ property. In the said application, plaintiff had stated that defendant Nos.13, 14, 18 and 20 to 27 filed written statement contending that schedule ‘B’ property is not in existence at all, however, the schedule ‘B’ property is in existence and in the month of February, 2022, during pendency of the suit, the defendants started construction over schedule ‘A’ & ‘B’ properties and made shops in part of ‘B’ schedule property. It is contended that the land purchased by defendants comes under schedule ‘A’ property and remaining land on North side is ‘B’ schedule property, however, the defendants are denying the existence of schedule ‘B’ property. Therefore, the defendants prayed to appoint Advocate-Commissioner to note down the physical features existing over the schedule ‘B’ property for proper adjudication of the matter. 8. In the said application, the defendant Nos.23 to 25 and 26 and 27 filed counters opposing the application and contended that the suit schedule ‘B’ property is not in existence and therefore, the question of making construction of shops over the schedule ‘B’ property in the month of February, 2022 does not arise and no grounds are made out by the petitioner/plaintiff. It is further contended that plaintiff filed the application at the stage of evidence of P.W.1 without any basis and to delay the proceedings; that the aspect whether the suit schedule ‘B’ property is in existence or not is a matter to be decided by the Court at the time of trial and at this stage, the appointment of Advocate-Commissioner is nothing but collection of evidence with regard to existence of any schedule ‘B’ property and finally prayed to dismiss the application. 9. The trial Court on consideration of the facts and circumstances of the case, allowed the application vide order dated 09.02.2024 and appointed an Advocate-Commissioner to note down the physical features existing over the schedule ‘B’, which is stated to be adjacent to suit schedule ‘A’ property by comparing with the measurements as reflected in sale deeds and file report. 9. The trial Court on consideration of the facts and circumstances of the case, allowed the application vide order dated 09.02.2024 and appointed an Advocate-Commissioner to note down the physical features existing over the schedule ‘B’, which is stated to be adjacent to suit schedule ‘A’ property by comparing with the measurements as reflected in sale deeds and file report. Aggrieved by the impugned order dated 09.02.2024, the present revision petition is filed. 10. Learned counsel for the petitioners/defendant Nos.18, 22, 23, 24, and 25 had contended that the trial Court erred in appointing the Advocate-Commissioner to note down the physical features existing over the schedule ‘B’ property, and the impugned order is unsustainable. He further contended that trial Court ought to have seen that the revision petitioners’ predecessor-in-title purchased schedule ‘B’ property under the registered sale deeds bearing document Nos.3964/1984, 3965/1984, 3966/1084 dated 21.12.1984 and the present suit is filed for partition after three decades without there being any legal right with ulterior motives. It is further contended that trial Court failed to consider the well established principles of Order XXVI Rule 9 of CPC in appointing an Advocate Commissioner and finally, prayed to allow the revision by setting aside the impugned order. 11. Per contra, learned counsel for respondent/plaintiff had contended that on due consideration of material facts and circumstances, the trial Court had rightly allowed the application appointing Advocate-Commissioner to note down the physical features of the schedule ‘B’ property for proper adjudication of the matter and no grounds are made out by the petitioners/ defendants to interfere with the impugned order and finally prayed to dismiss the revision petition. 12. Perusal of the record and impugned order would disclose that plaintiff filed the suit for partition, declaration and separate possession of suit schedule ‘A’ & ‘B’ properties, and the defendants have taken a specific stand that suit schedule ‘B’ property does not exist. 12. Perusal of the record and impugned order would disclose that plaintiff filed the suit for partition, declaration and separate possession of suit schedule ‘A’ & ‘B’ properties, and the defendants have taken a specific stand that suit schedule ‘B’ property does not exist. The contesting defendants contended that defendant No.1 along with mother and brothers executed a registered GPA bearing document no.156/1983, dated 09.05.1983 in favour of late Pedda Pentaiah (who is none other than third son of N.Veeraiah), who in turn executed four registered sale deeds in favour of defendant Nos.12 to 14 and mother of defendant No.15 and 16; that defendant No.12 gifted an extent of 198.78 square yards to the defendant Nos.18, 23 and 24 vide registered gift settlement deed dated 01.03.2021 out of his 226 square yards purchased from his vendor N.Pedda Pentaiah. 13. It is the main contention of the plaintiff that suit schedule ‘B’ property is very much in existence and during the pendency of the suit, the contesting defendants started construction over suit schedule ‘B’ properties and made shops in part of it and therefore, it is just and necessary to appoint an Advocate- Commissioner to note down the physical features of the suit schedule ‘B’ property for proper adjudication of the issue in dispute and to that effect, the plaintiff filed application in I.A.No.1356 of 2023, which was rightly allowed by the trial Court on 09.02.2024. 14. By order dated 09.02.2024, the trial Court referred the citations, relied upon by the plaintiff, in M.Yadaiah and another v. M.Chilakamma and others, 2022 (2) ALD 299 (TS); Adarsh Constructions, Hyderabad and another v. Qamaarunnissa Begum and another, 2022 (4) ALD 112 (TS) and Bandaru Mutyalu and another v. Palli Appalaraju , [ 2013 (5) ALD 376 ] , wherein it was observed that as per Section 75 of C.P.C., Commissioner may be appointed to examine any person, to make local investigation, examine or adjust accounts, to make a partition, to hold a scientific or technical or expert investigation, to conduct sale of property in the circumstances mentioned therein or to perform a ministerial act. It is further observed that an Advocate-Commissioner appointed by any court of law would execute warrant issued for noting down the physical features of the disputed property, only after issuance of notice to both the parties fixing the date and time of inspection; that the Advocate-Commissioner would inspect the disputed property at all times in the presence of parties to the suit. By referring the above citations, the trial Court has allowed the application filed by the plaintiff and appointed the Advocate- Commissioner to note down the physical features of the suit schedule ‘B’ property, which is disputed by the contesting defendants. 15. Now, it is relevant to refer to Order XXVI Rule 9 of CPC, as per which, in any suit in which the Court deems a local investigation is necessary or proper for the purpose of elucidating any matter in dispute, it can issue a commission. 16. The relief under Order XXVI Rule 9 of CPC is discretion in nature and the trial Court can exercise the power to appoint Commissioner, to record physical features of the suit schedule properties and/or to localize the disputed property, if the trial Court is of the opinion that such report is necessary for proper adjudication of the dispute. However, such discretion has to be exercised in judicious manner in the facts and circumstances of each case. The trial Court before appointing Advocate- Commissioner has to examine whether such appointment is necessary for effective resolution of dispute, but shall not be intended to gather evidence or to resurrect a lost cause in disguise. 17. The suit filed by the plaintiff for partition and separate possession of the suit schedule ‘A’ and ‘B’ properties, for which the contesting defendants disputing that suit schedule ‘B’ property does not exist since they purchased the suit schedule ‘B’ property from their predecessor-in-tile under registered sale deeds. On perusal of the pleadings of the respective parties, it appears that there is dispute with regard to the existence of the suit schedule ‘B’ property or not. 18. In M.Yadaiah and another v. M.Chilkamma and others , [ 2022 (2) ALD 299 (TS)] , a learned single Judge of this Court held that appointment of Advocate-Commissioner to note down the physical features does not amount to facilitating the party to collect evidence. 18. In M.Yadaiah and another v. M.Chilkamma and others , [ 2022 (2) ALD 299 (TS)] , a learned single Judge of this Court held that appointment of Advocate-Commissioner to note down the physical features does not amount to facilitating the party to collect evidence. The Court has got ample power to discuss and determine the extent to which the Commissioner's report can be taken up into consideration for coming to a just conclusion with regard to the merits of the case. 18.1. It was further observed as hereunder:- “Noting down the physical features that exists at the disputed property themselves does not change the circumstances present therein and the Advocate-Commissioner's report would always aid the Court in coming at a just conclusion with regard to the presence of a situation that exists at the disputed property. Admittedly, nothing present therein can be changed either through physical verification of the Advocate- Commissioner or by his report. The point that has to be observed here is that any Advocate-Commissioner appointed by any Court of law would execute warrant issued for noting down the physical features of the disputed property, only after issuance of notice to both the parties fixing the date and time of inspection. The Advocate-Commissioner would inspect the disputed property at all times in the presence of the parties to the suit or their authorized representatives including their counsel except in cases, where such parties themselves restrain from making their presence in spite of issuance of notice. Also, law provides and enables the parties to the proceedings to file objections to the Commissioner's report after it is presented to the Court of law on execution of warrant. Such being the case, it cannot be held that only for the purpose of collection of evidence, the petitioners have moved application for appointment of Advocate-Commissioner." 19. In view of above discussion and legal position, in considered opinion of this Court, the trial Court has rightly appointed the Advocate Commissioner to note down the physical features of the suit schedule ‘B’ property by the impugned order and the same does not amount to collection of evidence and in fact, will aid in adjudicating the contention issue of existence of suit schedule ‘B’ property. The petitioners have failed to make out any case warranting interference of this Court with the impugned order dated 09.02.2024 passed by the trial Court. 20. The petitioners have failed to make out any case warranting interference of this Court with the impugned order dated 09.02.2024 passed by the trial Court. 20. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. Pending miscellaneous applications, if any, shall stand closed.