High Court · 2025

5. Smt.N.Jyothi Laxmi, Wo N.Narsing Rao, Aged 51 yrs, occ: house wife, R/o H,No.3-1 1-45, RTC Colony, L.B.Nagar, Ranga Reddy District.

6. Nellutla Veeraiah, S/o late Nellutla Balaiah, Aged about 54 yrs, occ: business, R/o H .No.16-1 1 -235, lVloosarambagh, Malakpet, Hyderabad

7. Nellutla Jangaiah. S/o late Nellutla Balaiah, Aged 47 yrs occ business, R/o H.No.16-11-235, Moosarambagh. Malakpet, Hyderabad. 8. Nellutla Dasrath. S/o late Nellutla Balaiah, Aged about 44 yrs, occ: business, R/o H.No.16-1 1-235, Moosarambagh, Malakpet, Hyderabad.

9. Nellutla Bhagya Lakshmi, D/o late Pedda Pentaiah, Aged 41 yrs, occ: house wife, R/o H.No.16-1 1-238, fuloosarambag;h. It/alakpet, Hyderabad. '10. tt/.Vara Lakshmi, W/o late M.Srisailam, D/o late Nellutla Pedda Pentaiah, Aged 40 yrs, occ house wife, R/o H.No.4-4-57, Attapur, Rajend ranagar, Ranga Reddy District.

11. Nellutla Raghavendra, S/o late Pedda Pentaiah, Aged 39 yrs, occ: business, R/o H-No.16-11-238, Moosarambagh, It/lalakpet, Hyderabad.

12. Nellutla Sai Prasad, S/o late Pedda Pentaiah. Aged 36 yrs, occ business, R/o H.No.16-11-238/1, lt4oosarambagh, IValakpet, Hyderabad '13. Nancharla Jagat Narayana, S/o Pedda Balaiah, Aged 60 yrs, occ Govt Employee, R/o H.No.3-2 373/A, Chappal Bazar, Kachiguda, Hyderabad.

14. Nancharla Satyanarayana, S/o Pedda Balaiah, Aged 62 yrs, occ Pvt Employee, R/o H. No.3-2-373, Chappal Bazar, Kachiguda, Hyderabad.

15. K.Laxmi, Wo K Vidya Sagar Rao, Aged about 62 yrs, occ house wife, R/o H.no.3-2-373lA, Chappal Bazar, Kachiguda, Hyderabad 16- Ra1 Kumar Pawar, S/o It/.P.Goud, Aged 35 yrs, R/o H.No.2-3-64lC, Thirumalanagar, Amberpet, Hyderabad.

17. Pradeep Kumar Pawar, S/o M.P. Goud, Aged 33 yrs, R/o H.No,2-3-64lC, Thirumalanagar, Amberpet, Hyderabad

18. Babitha Pawar, Wo B.Vijay Kumar, Aged 47 yrs, occ: house wife, R/o H.No.2-3-64lC, Thirumalanagar, Amberpet, Hyderabad '19. M.Vijaya Simha Reddy, S/o M.Anand Kumar, Aged 53 yrs, occ: business, R/o H.No.16-'l 1-302/3, Moosarambagh, Malakpet, Hyderabad.

20. M.Prabhavathi, Wo M.Anand Kumar, Aged 59 yrs, occ house wife, R/o H.No.1-187/2, Marikal Dhanvada Mandal, Mahaboobnagar District

21. Nancharla Gopal, Sio N.Pedda Balaiah, Aged 63 yrs, Occ. business, R/o H,No.3-2-373lA, Chappal Bazar, Kachiguda, Hyderabad. I ,22 Gaddam Danraj Yadav, S/o Gaddam Pentarah, Aged 50 yrs, occ business, R/o H.No.16-11-16/fuN/15, West Prashanth Nagar, Moosarambagh, Hyderabad.

23. Gaddam Raju Prem, S/o Gaddam Pentaiah, Aged 52 yrs, occ: business, R/o H.No.1 6-1 1-16/tuN/1 5, West Prashanth Nagar, Moosarambagh, Hyderabad. lA NO: 1 OF 2024 Respondents/Defendants Nos. 1 to 23, Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in pursuant to the order passed in l.A. No.1356 of 2023 in O.S.No.614 of 2018 dated 09.2.2024 on the file of the XVll Additional Senior Civil Judge, City Civil Court, Hyderabad. For the Petitioners : Sri Nalla Mukunda Reddy, Advocate For the Respondents: Sri Mirza Safiulla Baig, Advocate The Court made the following: ORDER I 4l HON'BLE SRI IUSTICE LAXMI NARAYANA ALISTIETTY C]\'IL ITEVISION PETITON NO.1O37 OF 2024 ORDEIT: l his C'ivil Revision Petition is filed assailing the order dated 09.02.2{)24 in 1A.No.1356 of 2023 in O.S.No.61'1 of 2018 passed by tlre XVII Additional Senior civil Judge, City Civil Court, Hyderabad

2. IJeartl Sri [-[.Venugopal, learned senior counsel represcntin;-. Sri N. N4ukund Reddy, learned counsel for petitioners orr rccorcl, and Sri Mirza Saifulla Baig, learnetl counsel for respondr:rrts

3. The i,t'titiorrers herein are the defendant Nos.18, 22,23,24 25; responrlt'nt no.1 hereiu is the plaintiff No.l before the trial Court. For convenience, hereinafter the parties are rel'erred to as thev are iirrcrys6l in thc suit.

4. Brief lacts relevant for adjudication of the present Civil Revisior.r Pr.tition are that plaintiff filed the suit for partition, cleclaration and separate possession against the defendants in LNA,J CRP No t037 of2024 respect of property bearing Municipal Nos.16_11_16/ M/1, 16_11_ 1,6M/2, 16-11-76/M/3, 76_11_76/1A and t6-11_16/7/B admeasuring 1193 square yards in Sy.No.SB of prashant Nagar, Teegalguda, Moosarambagh, Malakpet, Hyderabad, which is referred as schedule 'A' property and the property admeasuring 478 square yards in Sy.No.Sg 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 defendar-rt 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, &,8, properties r.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 ) \\ -.'\ LNA,J CR1'\a 1037 of2021 stand that the schedule 'B' property is not in existence' It is further contended that question of partition of the schedule properties drres not arise inasmuch as they are not available for the partition; that schedule 'A' property was sold by defendant No.1 along \'vith his mother and brothers in the year 1984 and 1985, by the time, the plaintiff was aged about B or 9 years and therefore, it is highly improbable that he would have confronted about the s.rles t-ttacle by his father, i.e., defendant No.1, along u,ith others. 7 Durinli the pendency of the suit, plaintiff filed I.A-No-l356 of 2023 unrlcr XXVI Rule 9 reacl with Section 151 of CI'C praving the trial Court to appoint an Advocate-Commissioner to note down the [rlr] sical features existing over schedule 'B' proper$, r,r,hich is atljacent to scheclule'A' property i.e., on the Northern side of sche.iule 'A' property. ln the said application, plaintiff had stated that tleieutlant Nos.13, 14, 18 and 20 to 27 filt:d written statement cor-rtendirrg that schedule 'B' property is not in existence at all, hovve",er, the schedule'B' property is itr existence and in the rtror-rth of February,2022, d,uring pendency of the suit, I I l LNA,J CRP No.l037 o12024 I the defcndants started construction over schedule 'A' & 'B properties and made shops in part of 'B'schedule property. it is contended that the land purchasecl by defendants comes under schedule 'A' property and remaining land on North side is 'B' schedule propcrty, 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 adjuclication of the rnatter

8. In the said application, the defendant Nos.23 to 25 and 26 and 27 filed counters opposing the. application ancl contencled that the suit schedule 'B' property is not in existence and therefore, the question of making conshuction of shops over the schedule'B' property in the month of February, 2022 does not arise ancl no grounds are made out by the petitioner/ plaintif f . It is further contended that plaintiff filed the application at the stage of evidence of P.W.l 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 ) ) n ) LNA,J IN7 of2024 CRP ^o Court at the tir-r-re of trial ancl at this stage, the appointment of Advocate-Co mrnissioner is rrothing but collection of evidence u,ith regard to existence of any schedule'B' property and finally prayed to ciisr-uiss the application

9. The tr:ial Cour-t on consideration of the l.acts and circumstances of the case, allowed the application vide order dated 09.02 2024 ancl appoirrted an Advocate-Comn.rissioner to note down the physical features existing over the schedule 'B', which is stateri to L're acliacerrt to suit scl-redule 'A' property by comparing r^,,itt-r the measurorrents as reflectecl in sale deeds and file report. Aggrieved by the impugned order dated 09.02.2024, thc prescnt r evisi()lt Petitiot-r is iiletl.

10. Learrr,.rd counsel fol the petitiorrers/ deferrd ant Nos.18,22, 23, 24, anrl 25 harl contettrled that the trial Court clred in appointing the Arlvocatc-Comrnissioner to note down the physical feirtures existing over the schedule'B' property, and the impugnecl orrier is unsustainable. He further contencled that trial Court ought to have seen that the revision petitioners' predecesso r-ir-r- titlc. purchasc'cl schedule 'B' propertl' under the I () LNA,J CRP No.1037 of 2024 registered sale deeds bearing document Nos.3964/1984, 3965/7984, 3966/7084 dated 21.12.1.984 and the present suit is fited for partition after three decades without there being any legal right with ulterior motives. [t is further iontended 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. Pcr contra, Iearned counsel for respondent/ plaintiff had contencletl tlrat on due consiclcration of tnaterial facts and circumstances, the trial Court had rightly allowed the application appointing Advoca te-Comlnissioncr to note down the physical features of the schedule'13' property for proper adjudication of the ma tter anc{ no grounds are made out by the petitioners/ defendants to interfere with thc impugned order and finally prayed to dismiss the rcvision petition. 1,2. 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 ) ) / LNA,J CRP \a.1037 oJ 2024 defendants havc takcn a specific stand that suit schedule 'B' property does not exist. The contesting defendants contended that defenclant No.1 along with mother and brothers executed a registered G['A bearing documc.nt no.156/1983, dated ()9.05.1983 in favour of late Pedda Pentaiah (who is none other than third son of N.Veeraiah), u,ho in turn executed four registered sale deeds in favou r of clcfenclant Nos.12 to 14 ar-rd nrother of defendar-rt No. l5 and l6; that defenclant No.12 gif ted an extent of

198.78 square vards to the clefenclant Nos.1B, 23 ar-rcl 24 r,ide rcgistered glitt st'ttlenrcnt dt'ct{ clatt,tl 01.03.2021 out ol his 226 square yards purchased from his vendor N.Pedda Pentaiah.

13. lt is the nririn contentior-r oi thc. plairrtiff that suit scheclule 'B' propertt, is r ery rnuch in existr.nce antl duringl the' pendency of the suit, the contesting c-le.fendants started construction over suit schedule '[3' properties arrcl rnade shops in part of it and therefore, it is just and nccessary to appoint an Aclvocate- Commissioner to note down the physical features of the suit schedule 'B' property for proper adjudication of the issue in dis9e ancl to that effect, the plaintiff filecl application 1n ] I 8 LNA,J CRP Na 1037 of2021 I.A.No.1356 of 2023, which was rightly allowed by the trial Court on 09.02.2024.

14. Bv order datccl 09.02.2024, the trial Court referred the citations, relied upon b1, the plaintif f , in M.Yadniah and another a M.Chilakantma and othcrsl; Adnrsh Constt'uctions, Hyderabad and another tr. Qanmarunnissn Begum and another2 and Bandaru Mufualu and anotltcr t,. Palli Appnlarajul, wherein it was observed that as per Section 75 of C.P.C., Commissioner tnay be appointed to examine any pel'son, to make local investigation, examine or adjust accounts, to nrakc 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 furtht'r ot-,son'ed that an Aclvocate-Commissioncr appointed by any court of lau,would exccute wan'ant 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 clisputed property at all times in the presence of parties to the 022 (2) ALD 299 (rS) 022 (4) ALD 112 (rS) 013 (s) ALD 376 I1 ,2 -r2 I \ , 9 LNA,) CRP No 1037 of2024 suit. By refclring the above citations, the trial Court has allowed the application filed by the plaintiff and appoirlted the Advocate- Cornmissiont,r to notc clown the physical fcatures of the suit schedule 'B' property, which is disputecl by the r'ontesting clefendants

15. Now, it is relevant to refer to Order XXVI Rule 9 of CpC, as per which, tn any suit in which the Court deems a local investigation is ne.cessary or proper. for the purpose of t lucidating any matter in ciispute, it can issue a commission "16. The reiief under Order XXVI Rule 9 of CI)C is discretion in nature and the trial Court can exercise the 1-rowg1 to appoint Commissioner, to record physical features of the suit schedule properties and/or to localize the disputed property, if the trial I Court is of the opinion that such report is neccssary for proper adjudication of the dispute. However, such discretion l.ras to be exercised in judicious manner in the facts and circumstances of each case. The trial Court before appoir.rting Advocate- Commissioner has to examine whether such appointment is --/' - necessary tor eftective resolution of dispute, but shall not be l I I l0 LNA,J CRP No.l037 o!2024 intendcd to gather evidence or to resurect a lost cause in disguise.

17. The suit filed by the plairrtiff for partitior.r and separate possession of the suit schedule'A'and'B'properties, for which the contesting defendants disputirrg 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 thc pleadirrgs of the respective parties, it appears that there is dispute with regard to the existence of the suit schedule 'B' propertY or not.

18. ln M.Yadaiah and another v. M.Chilkamma and othersa, a learned single Judge of this Court held that appointment of Advocate-Commissioner to note down the physical feafures 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 iust conclusion with regard to the merits of the case. o zozz (2) ALD 299 (TS) ) ) ,/ LNA.J Cl.:l No 1037 of2024

18.1. It was further observeci as hereunder:- "Noting d()w,n the physical features that exists at the disputed propertv tlren-selves does not change the circumstances present therein and the Advocate-Commissioner's report would always aid thc Court in coming at a iust conclusion with rr:garei to the presence of a situation that exists at the disputcd property. Admittedly, nothing present thercin can be changcrl either through physical verification of the Advrxate- Commissiorrer or by his report. The point that has to be observed hore is that anv Advocate-Commissioner appointed by any Coult of law,would exL.cute warralrt issued ior notrnr tlown the physical features of the disputed propL.rt,v, onh, af ter issuance of notice to both the parties fixing the tlate and time of insprrction. Thc Advocate-Comrnissioner woulcl inspect thc disputcci propertv at all times in the presence of the partios to the suit or their authorized represelltatives including their .a',rrro.'l p11'r.pt in cases, where such parties themsclves restrain from making their presence in spite of issuance of notice. Also, lara, provirles and enables the parties to the proceedings to file objections to the Commissioner's report afkr it is prcsentt'tl to the Crrrrrt ol law on execution of warrant. Such hcinl', the case, it cannot [.,e held that only for the purpose of collcction of evidence, the petitioners have moved application for appoin trncnt of Advcrate-Commissioner."

19. In view of above discussion alld lcgal position, Ill considered opinion of this Court, the trial Court has rightly appointed the Arlvocate Commissioner to note c{owrr the physical 1 I I I , I LNA,.I CRP No.l037 o;l2024 features of the suit schedule 'B' property bv the impugned order and the same does not amount' to collection of evidence atrd in fact, will aid in adjudicating the contention issue of existence of suit schedule 'B' property. The pctitioners have failed to rnake 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. Tl-rere shail be no order as to costs. Pending miscellaneous applications, if any, sha1l stand closed. //TRUE COPY/i Sd/- L. LAKSHMI BABU SS TANT REGISTRAR SECTION OFFICER To, I I '1 . The XVll Additional Senior Civil Judge, City Civil Court, Hyderabad 2. One CC to Sri Nalla Mukunda Reddy. Advocate [OPUC] 3. One CC to Sri Mirza Safiulla Baig, Advocate [OPUC] 4. Two CD Copies W ) ) HIGH COURT DATED 5t2t2025 f ) 1- o r 1 E-4 v se .F.t fii {pl \ t!i/ tt .Jl\{ * ORDER CRP.No.'1037 of 2024 I REVISION IS DISIVIISSED, NO COSTS q a^