Research › Search › Judgment

Telangana High Court · body

2025 DIGILAW 767 (TS)

Kandula Bixapathi v. Rapelli Mallikarjun

2025-06-09

LAXMI NARAYANA ALISHETTY

body2025
ORDER : LAXMI NARAYANA ALISHETTY, J. The order dated 30.08.2023 passed in IA.No.521 of 2023 in OS.No.2841 of 2022 on the file of Principal Junior Civil Judge, Warangal is under challenge in the Revision Petition. 2. Heard Sri J.Venkateshwar Reddy, learned counsel for revision petitioner, and Sri Dadi Radha Krishna, learned counsel for the respondents. 3. The petitioner is defendant and the respondents are plaintiffs in the suit. For convenience, hereinafter the parties will be referred to as they are arrayed in the suit. 4. In nut-shell, the facts of the case, required for adjudication of the present Revision Petition are that plaintiff filed the aforesaid suit for perpetual injunction against the defendant in respect of the suit schedule property. The defendant entered appearance and filed written statement, issues were framed, trial commenced and when the matter was coming up for cross-examination of defendant, the defendant filed an application under Order XXVI Rule 1 CPC vide IA.No.1156 of 2018 for appointment of Advocate-Commissioner to inspect and note down the physical features of the suit schedule property. 5. In the affidavit filed in support of the application, the defendant averred that there is a dispute with regard to identity of the suit schedule property and that the plaintiffs are claiming agricultural land to an extent of Acs.3.30 guntas in Sy.No.171/F Village; that PW-2 also admitted the same in his cross-examination and therefore, it is necessary to get recorded the physical features of the suit schedule property with that of the property belonging to the defendant through Advocate-Commissioner and the same would be helpful for proper adjudication of the suit. 6. The plaintiffs filed counter resisting the said application and contended that the land in Sy.No.171/F is only an extent of Ac.1.00, therefore, the claim of the defendant that Acs.3.30 in the above Survey number is false and baseless; and that the defendant is trying to grab the suit schedule property of the plaintiffs basing on false and fabricated documents. 6. The plaintiffs filed counter resisting the said application and contended that the land in Sy.No.171/F is only an extent of Ac.1.00, therefore, the claim of the defendant that Acs.3.30 in the above Survey number is false and baseless; and that the defendant is trying to grab the suit schedule property of the plaintiffs basing on false and fabricated documents. The plaintiffs further averred that the application is not maintainable and it is not the duty of the Court to find out the identity of the property and that the evidence on both sides has been completed and the matter is coming up for final adjudication, at this stage, the application was filed which amounts to collection of evidence through the Advocate- Commissioner and as such, the application is untenable and the same is liable to be rejected. 7. The trial Court by an order dated 05.03.2019 allowed the said application and appointed Advocate-Commissioner to note down the physical features of the suit schedule property and further directed him to prepare rough sketch and take photographs and answer the work memos filed by both parties in consonance with the directions given and file report before the Court. Consequent thereupon, the warrant issued by the trial Court was executed by the Advocate-Commissioner on 29.03.2022 and he filed report before the trial Court along with rough sketch and photographs. Subsequent thereto, the plaintiffs filed an application vide IA.No.521 of 2023 to re-direct the Advocate-Commissioner to answer the work memo filed by the plaintiffs and to take assistance of Surveyor to demarcate the suit schedule property and the alleged land of the defendant. 8. In the affidavit filed in support of the said application , the plaintiffs averred that when the notice was issued by the Advocate-Commissioner for execution of warrant issued by the Court, the plaintiffs have filed work memo to take assistance of Surveyor for fixation of survey number stones for which the commission work was adjourned and as per his advise, the plaintiffs have paid requisite fee on 04.11.2022, however, surprisingly the Advocate- Commissioner has filed report without taking assistance of Surveyor and plaintiffs have filed their objection to the report filed by the Advocate-Commissioner and the same was pending consideration. It was further averred that plaintiff No.1 is in possession and enjoyment of land admeasuring Acs.2.00 gts which includes Ac.1.30 gts in Sy. No.183/A and Ac.0.20 gts in Sy. It was further averred that plaintiff No.1 is in possession and enjoyment of land admeasuring Acs.2.00 gts which includes Ac.1.30 gts in Sy. No.183/A and Ac.0.20 gts in Sy. No.171/F, of Gorrekunta Village, Geesugonda Mandal, Warangal District. 9. The defendant filed counter resisting the said application and averred that the application is misconceived and untenable and the same is filed since the Advocate-Commissioner’s report is against to the plaintiffs; that the plaintiffs are falsely claiming the land belonging to the defendant admeasuring Acs.3.30 guntas in Sy.No.171/F which is a single block and finally, prayed to dismiss the application. 10. The trial Court vide impugned order allowed the said application and re-entrusted the warrant to Advocate- Commissioner to execute the warrant as per the work memos given by both parties with the assistance of Surveyor. Assailing the said order, the present Revision Petition is filed. 11. Perusal of record discloses that the plaintiffs are claiming suit ‘A’ and ‘B’ schedule properties, i.e., suit ‘A’ suit schedule property totally admeasuring Ac.2.00 gts compressing Ac.1.20 gts in Sy.No.183/A and Ac.0.20 gts in Sy.No.171/F and suit ‘B’ schedule property comprises land ad Ac.1.00 in Sy.No.183/A of Gorrekunta Village, Geesugonda Mandal, Warangal District, totaling to Acs.3.00, whereas it is the specific case of the defendant that he has purchased an extent of Acs.3.30 guntas in Sy.No.171 /F of Gorrekunta Village. Thus, both the parties have rival claims with regard to identity and the actual extent of land available in Sy.No.171/F. Admittedly, the Advocate-Commissioner has filed report without taking assistance of the Surveyor despite specific work memo filed by the plaintiffs to take assistance of Surveyor for proper identification of the land. 12. It is relevant to note that when there is a dispute with regard to identity of agricultural land as to it’s, location and existence in a particular survey number, it is always appropriate and proper to first identify the survey number with assistance of revenue officials i.e., Surveyor so as to properly execute the warrant. Admittedly, in the present case, the Advocate-Commissioner has not taken assistance of the Surveyor that too after payment of requisition fee by the plaintiff for availing services of Surveyor. The Advocate- Commissioner has executed warrant on his own and the report submitted by him does not disclose as to how the land was identified before noting down the physical features of the said land. The Advocate- Commissioner has executed warrant on his own and the report submitted by him does not disclose as to how the land was identified before noting down the physical features of the said land. In the light of the foregoing reasons and discussion, in considered opinion of this Court, the trial Court has rightly allowed the application filed by the plaintiffs. This Court does not find any illegality or irregularity in the impugned order passed by the trial Court warranting interference and accordingly, the Revision Petition is liable to be dismissed. 13. In the result, the Revision Petition is dismissed. 14. Miscellaneous petitions pending, if any, shall stand closed. No costs.