High Court · 2011

Order

These two Civil Revision Petitions are filed under Article 227 of the Constitution of India aggrieved by orders, dated 08.10.2010, passed by the learned Senior Civil Judge, Jangaon in the two I.A.s being I.A.Nos.647 of 2009 and 94 of 2010 in O.S.No.19 of 2008. Petitioner is the plaintiff in the suit, which was filed for declaration and injunction with regard to suit schedule property i.e. agricultural land admeasuring Acs.2.30 guntas covered by Survey No.82/1 situated at Yeshwanthapur Village, Jangaon Revenue Mandal, Warangal District. In the aforesaid suit, it is the case of the petitioner that the suit schedule property is a part of the land allotted to the petitioner by way of assignment, as he was an ex-serviceman.

It is the case of the respondents that they purchased the suit schedule property and it is in their possession. In the written statement, it is categorically pleaded that the land admeasuring Acs.2.20 guntas was initially covered by Survey No.82/B1 or 82/1B and after sub-division, the present Survey Number 82/72 was assigned in 1988. On the aforesaid lines, the respondents defended their claim. In the above-mentioned suit, trial has not been commenced. At that stage, the petitioner filed I.A.No.647 of 2009 under Order XXVI Rule 9 CPC read with Section 151 CPC seeking appointment of Advocate Commissioner to demarcate the schedule mentioned property, and I.A.No.94 of 2010 under Order VI Rule 17 CPC seeking amendment of the plaint.

By the proposed amendment, the petitioner seeks to add following paragraphs after paragraph No.23. “23(1). It is to submit that after the rejection of the plaint, the

plaintiff made representations before the concerned authorities and the facts and illegal acts of the authorities who are hand in glow with the Defendant Nos.1 and 2 who helped in fabricating the documents by making the illegal corrections without any base and positive proof in favour of the defendant No.1 and 2. And the plaintiff has filed the relevant and required documents before the Honourable Court. It is to submit that the plaintiff has dug the well in the year 1974 in the land in Sy.No.82/1 to an extent of Ac.4.00, and the same was demarcated in the map, and after that as per the representation of the plaintiff, the District Collector, Warangal has made an enquiry and confirmed that there is an existence of the land of the plaintiff for better identification. And the same fact was revealed the Panchanama conducted by the District Collector, Warangal and other facts were also revealed in the enquiry of the District Collector, Warangal in the year 2008. 23(2). It is to submit that the defendants 1 and 2 with the help of the members of the defendants 3 to 5 created the documents and falsely claiming the suit land, and further the plaintiff came to know that the Puli Narsimhulu, son of Sailu, who is no more and defendants 1 and 2 are claiming the land in the name of said persons and in the enquiry of the plaintiff it is revealed that the said Narsimhulu has sold his land in Sy.No.82, bit No.82/2, to one Elagandula Sukanya, Wife of Madhusudhan Reddy and the land in Sy.No.82, bit No.B1 Lavunipatta land sold to Elagandula Mallesham, S/o. Chandraiah, thus the said Puli Narsimhulu have no land in Sy.No.82. And with the help of the employee the pahanies were created in the year 2002 and 2003 showing the land in the name of Puli Vijayalaxmi, W/o.Narsimhulu, and basing on this false documents, the defendants 1 and 2 harassing the plaintiff and claiming the suit land as if the lands of Puli Narsimhulu who have no land in any where, in Sy.No.82 of Yeshwanthapur Village. And the said sales were took place 1992, 1993 itself, and in spite of having the sufficient knowledge, due to the hike of the values of the lands, false documents were created with the help of the employees of the defendants 3 to 5. And further it is to submit that after selling the properties to above said persons, the name of the Puli Vijayalaxmi has shown in Chowfaisla to the year 1999 to 2000 of Yeshwanthapur, all the acts clearly shows that the mala fide intention and collusion of the defendants 3 to 5. And all the relevant documents filed before the Court.” The two I.A.s were dismissed by the Court below by the impugned orders. The Court below mainly on the ground that the petitioner is collecting evidence to establish his claim by seeking appointment of Advocate Commissioner and no Commissioner can be appointed for such purpose, rejected I.A.No.647 of 2009. The Court below also dismissed I.A.No.94 of 2010 mainly on the ground that earlier, the District Collector, Warangal, the Revenue Divisional Officer, Jangaon and the Tahsildar, Jangaon, were parties to the suit but on the application filed by the learned Assistant Government Pleader, they were deleted from the array of parties and in spite of the same, without impleading them, the petitioner by making allegations against such persons, sought for amendment of the plaint and as the allegations are made against the persons, who are not made parties to the suit, no amendment can be allowed in the suit. Heard the learned counsel for the petitioner and the learned counsel for the respondents. It is to be noticed that the petitioner also filed O.S.No.234 of 2001 for injunction simplicitor, in the Court of Principal Junior Civil Judge, Jangaon. It is stated that the same was dismissed and the said judgment has become final. It is also to be noticed that though the petitioner is claiming the suit schedule property i.e. Acs.2.30 guntas covered by Survey No.82/1, it is the case of the respondents that new survey number was assigned and it corresponds to 82/B1 and subsequently, in the sub-division of Survey Numbers, 82/72 was given in respect of the suit schedule property. In that view of the matter, as there is no dispute with regard to boundaries and demarcation of the suit schedule property and having regard to the pleadings on record, there is no reason in seeking appointment of Advocate Commissioner for demarcation of the suit schedule property and if the petitioner claims that he is in possession of the suit schedule property, it is for him to establish the same by way of evidence during trial and under the guise of demarcation, I.A.No.647 of 2009 filed under Order XXVI Rule 9 CPC cannot be ordered. For the aforesaid reasons, I am of the view that the Court below has rightly rejected I.A.No.647 of 2009. So far as I.A.No.94 of 2010 filed under Order VI Rule 17 CPC seeking amendment of the plaint is concerned, it is to be noticed that by virtue of the proposed amendment, factual allegations are made by the petitioner in support of his claim. It is true that the District Collector, Revenue Divisional Officer and Tahsildar, who are initially made parties, were deleted from the array of parties on the application filed by the learned Assistant Government Pleader but in view of the factual allegations made by the petitioner, merely because they are not made parties to the suit, it cannot be said that I.A.No.94 of 2010 is to be rejected. It is well settled that so far as amendment of the pleadings, at pre-trial stage, they are to be considered liberally. Admittedly, in the instant case, trial is not commenced and from a perusal of the proposed amendment, this Court is of the view that no contradictory allegations are made by the petitioner. In the absence of any valid reason for rejecting I.A.No.94 of 2010, I deem it appropriate that it is a fit case to allow amendment as prayed for by setting aside order, dated

08.10.2010. For the aforesaid reasons, C.R.P.No.4989 of 2010 is dismissed confirming order, dated 08.10.2010 passed by the learned Senior Civil Judge, Jangaon, in I.A.No.647 of 2009 in O.S.No.19 of 2008, and C.R.P.No.4988 of 2010 is allowed and order, dated 08.10.2010 passed in I.A.No.94 of 2010 by the learned Senior Civil Judge, Jangaon is set aside. Consequently, I.A.No.94 of 2010 stands allowed. It is made clear that it is open for the respondents to file additional written statement and thereupon, the Court below shall frame additional issues in conformity with the proposed amendment, which is ordered as indicated above. No order as to costs. _______________________ R.SUBHASH REDDY, J 29th JUNE, 2011.