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2025 DIGILAW 825 (TS)

Burri Kanakamma v. Chittaluri Murali

2025-06-09

G.RADHA RANI

body2025
ORDER : G.RADHA RANI, J. This Civil Revision Petition is filed by the petitioner - plaintiff aggrieved by the order dated 21.08.2019 passed in I.A.No.289 of 2018 in I.A.No.196 of 2018 in O.S.No.87 of 2018 by the learned Principal Junior Civil Judge, Kodad. 2. O.S.No.87 of 2018 is filed by the petitioner - plaintiff seeking the relief of perpetual injunction restraining the defendants from interfering with her possession and enjoyment over the suit schedule property. The suit schedule property was an agricultural land to an extent of Ac.6-12.80 guntas in Survey No.41/1 situated at Kalakova Village of Munagala Mandal, Suryapet District with specific boundaries. Along with the suit, the petitioner - plaintiff filed I.A.No.196 of 2018 seeking temporary injunction. The defendants made their appearance and filed their written statement in the suit as well as counter in I.A.No.196 of 2018. At the time of hearing of the I.A, after the arguments were submitted by the counsel representing the petitioner - plaintiff, the respondents - defendants filed I.A.No.289 of 2018 under Order XXVI Rule 9 read with Section 151 of CPC for appointment of an Advocate Commissioner to note the physical features and to measure the entire suit survey numbers in between the petitioners and the respondent and to fix boundary stones with the aid and assistance of the Mandal Surveyor. 3. Their contention was that one Sri Gundu Venkaiah was the Pattadar for an extent of Ac.11-92 guntas in Survey No.41 at Kalakova Village, Munagala Mandal. The father of the defendants purchased an extent of Ac.6-00 guntas out of total extent of Ac.11-92 guntas in the above survey numbers from Sri Gundu Venkaiah on 31.01.1981 through unregistered sale deed and had taken physical possession of the land. The trees aged more than 35 years stand as a distinct boundary between the land in possession of the defendants and the plaintiff. The land of the respondent - plaintiff was located on the northern side of the trees and the land of the defendants was located on the southern side of the trees and prayed to appoint an Advocate Commissioner with the above reliefs. 4. The plaintiff filed her counter in the above petition contending that the petition filed for appointment of an Advocate Commissioner was not maintainable on the facts of the case or as per law. 4. The plaintiff filed her counter in the above petition contending that the petition filed for appointment of an Advocate Commissioner was not maintainable on the facts of the case or as per law. The said petition was filed only to drag on the matter in I.A.No.196 of 2018. After submitting her arguments and marking the documents on her behalf in the said I.A., the defendants came up with the false petition without submitting their arguments in I.A.No.196 of 2018. The neem trees aged 10 to 25 years were located in the suit property purchased by her through a registered sale deed. The trees standing as distinct boundary between the lands in possession of the plaintiff and defendants was a false story. The suit property was purchased by the plaintiff from the original owner late Gundu Venkaiah and his sons for a valuable consideration with specific boundaries on all sides and the said document was marked as Ex.P1 in I.A.No.196 of 2018. The same was not denied by the defendants. In the year 1987, when the plaintiff purchased the property from the original owner, it was clearly mentioned that at the southern side was the agricultural land of the vendor i.e. late Gundu Venkaiah . The notarised affidavits of the sons of late Gundu Venkaiah were also filed. The petitioners - defendants had no legal claim or right or possession over the suit property. The real controversy of the case was that the total extent of suit survey numbers was Ac.11-92 cents, out of that, the respondent - plaintiff purchased an extent of Ac.6-40 cents and the Irrigation Department acquired Ac.0-08 cents for canal of SRSP Project from the plaintiff and the balance land was Ac.6-12.8 guntas, whereas the petitioners - defendants were claiming an extent of Ac.6-00 guntas in suit survey numbers through unregistered sale agreement dated 31.01.1981, which was neither regularized under ROR Act nor obtained any regular registered sale deed from the original owner. The documentary evidence of both the parties was before the Court. The Advocate Commissioner could not be appointed for making an enquiry about factum of possession of the property in dispute, which was nothing but fishing of information and prayed to dismiss the petition. 5. The documentary evidence of both the parties was before the Court. The Advocate Commissioner could not be appointed for making an enquiry about factum of possession of the property in dispute, which was nothing but fishing of information and prayed to dismiss the petition. 5. The trial court on considering the contentions of the counsel representing both the parties observed that by allowing the petition, no prejudice would be caused to the respondent - plaintiff, as she would be having an opportunity to file her objections if any on the report of the Advocate Commissioner allowed the petition for appointment of an Advocate Commissioner to note down the physical features and for measuring the entire land in Survey No.41 and to fix the boundaries with the help of Mandal Surveyor as prayed for by the petitioners – defendants. 6. Aggrieved by the said order passed by the learned Principal Junior Civil Judge, Kodad, the respondent - plaintiff preferred this revision. 7. Heard Ms.Aarifa Imran Khan, learned counsel representing Sri Mohammed Imran Khan, learned counsel for the petitioner on record. There was no representation by the counsel for the respondents though the matter came up for hearing on several occasions. 8. Learned counsel for the petitioner submitted that the trial court failed to consider that the suit was instituted seeking an injunction by the plaintiff to restrain the defendants from interfering with her possession over an extent of Ac.6-12.80 guntas in Survey No.41/1 purchased by the petitioner through registered sale deed. On the other hand, the respondents i.e. the defendants relied upon an unregistered or sada sale deed, which was not even regularized. The appointment of an Advocate Commissioner was nothing but an attempt to mislead the Court by showing possession as on the date of visit of the Advocate Commissioner and thereby project a state of affairs which never existed. Only with the purpose of avoiding an order in I.A.No.196 of 2018, the respondents filed I.A.No.289 of 2018 seeking appointment of an Advocate Commissioner. The trial court while allowing the application in I.A.No.289 of 2018 had not applied its judicial mind to the issue and only on the aspect of no prejudice would be caused to the petitioner - plaintiff, passed the impugned order. The reasoning of the trial court was bereft of judicial application of mind. The trial court while allowing the application in I.A.No.289 of 2018 had not applied its judicial mind to the issue and only on the aspect of no prejudice would be caused to the petitioner - plaintiff, passed the impugned order. The reasoning of the trial court was bereft of judicial application of mind. The court below allowed the application not only for the purpose of noting down the physical features but for measurements of entire land in Survey No.41, and also to fix the boundaries with the help of Mandal Surveyor. The said orders were beyond the scope of appointment of an Advocate Commissioner. The trial court failed to consider that the defendants neither filed the counter claim nor a separate suit, but filed an application for appointment of an Advocate Commissioner in an injunction application filed by the plaintiff, which was totally un-called for. The trial court failed to consider that the respondents - defendants got some false entries made in the revenue records with the help of some revenue staff and the said entries were cancelled and a criminal case was initiated against them by the Joint Collector, Nalgonda and the said document was marked as Ex.P10 in I.A.No.196 of 2018. Without considering all the said aspects and that the petitioner purchased the schedule property under a registered sale deed, the trial court passed the impugned order. The trial court failed to consider the contention of the petitioner that in a suit for simplicitor injunction, an Advocate Commissioner could not be appointed and that too at the instance of the defendants in the suit. The trial court failed to consider that the appointment of an Advocate Commissioner was sought only as a mode to gather evidence and prayed to set aside the order passed by the trial court in I.A.No.289 of 2018 in I.A.No.196 of 2018 in O.S.No.87 of 2018. 9. Perused the record. 10. The record would disclose that the petitioner - plaintiff had instituted the suit seeking the relief of permanent injunction against the defendants restraining their interference with the suit schedule property. The suit schedule property was shown as Ac.6-12.80 guntas in Survey No.41/1 situated at Kalakova Village of Munagala Mandal, Suryapet District, with specific boundaries. The southern side boundary of the suit schedule property was shown as agricultural land of sons of late Gundu Venkaiah. The suit schedule property was shown as Ac.6-12.80 guntas in Survey No.41/1 situated at Kalakova Village of Munagala Mandal, Suryapet District, with specific boundaries. The southern side boundary of the suit schedule property was shown as agricultural land of sons of late Gundu Venkaiah. The plaintiff is claiming title and possession based on a registered sale deed. The defendants on the other hand are claiming to be in possession and asserting their title through an unregistered sale deed. The suit was at the interlocutory stage, wherein the application for interim injunction is yet to be heard and disposed of. 11. It is a settled principle of law that in a suit for injunction, possession is the primary consideration and not title. The appointment of an Advocate Commissioner can be permitted under Order XXVI Rule 9 of CPC only for local investigation, where such investigation is necessary or expedient in the opinion of the Court for the purpose of elucidating the matter in dispute. However, on a perusal of the pleadings and the petition filed by the defendants, it is evident that the prayer for appointment of an Advocate Commissioner is primarily aimed at establishing possession indirectly on the basis of an unregistered sale deed. The appointment of an Advocate Commissioner at the initial stage would amount to a roving enquiry into possession and title, which is impermissible. The Courts have repeatedly held that the Advocate Commissioner cannot be appointed to collect evidence or to resolve disputed questions of title or possession, as per the judgment of the Hon'ble Apex Court in Ghan Shyam Das Gupta and Another v. Anant Kumar Sinha and Others , [ AIR 1991 SC 2251 ] and of the judgment of the High Court of Bombay in K.K.Verma and Another v. Union of India and Another , [AIR 1954 Bombay 358] 12. The petition filed by the respondents - defendants would not disclose any special circumstances that necessitate a local investigation. The issue of possession can be determined based on the available pleadings and documents. While the suit schedule property is located in Survey No.41/1, the trial court allowing the petition for measuring the entire land in Survey No.41 and to fix the boundaries with the help of Mandal Surveyor is beyond the scope of the suit. The issue of possession can be determined based on the available pleadings and documents. While the suit schedule property is located in Survey No.41/1, the trial court allowing the petition for measuring the entire land in Survey No.41 and to fix the boundaries with the help of Mandal Surveyor is beyond the scope of the suit. As such, the impugned order passed by the learned Principal Junior Civil Judge, Kodad is considered as erroneous, and the same is liable to be set aside. 13. In the result, the Civil Revision Petition is allowed setting aside the order passed by the learned Principal Junior Civil Judge, Kodad in I.A.No.289 of 2018 in I.A.No.196 of 2018 in O.S.No.87 of 2018, dated 21.08.2019. The trial court is directed to dispose of I.A.No.196 of 2018 with the available evidence on record at the earliest i.e. within a period of 30 days from the date of receipt of a copy of this order. No order as to costs. As a sequel, miscellaneous applications pending in this petition, if any, shall stand closed.