The High Court · 2025

Petition under s]err;tion '1 51 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may b,: pleased to interim suspension order, dated 28-06-2024 in CRP l'JO 1542 of vacate .the 2024. Between:

1. Korra Radhakrrshna Yadav, S/o K. Yadaiah, Aged about 41 years. Occ . Agriculture, Rlo H.No.5-63t1 .lafferguda village, Abdullapurmet Mandal, R.R. District 2. Korra Kumar Yadav, S/o K. Yadaian, Aoed about 41 years. Occ . Agriculture, R/o H.No.5-6312 .Jafferguda Abdullapurmet Mandal, R.R. District

3. Varda Narsimha {l/o Sattaiah, Aged about 45 years. Occ . Agriculture, R/o H.No.5-43 Jafferguda village, Abdullapurmet Mandal, R.R. District And ... Petitioners/Respondents 1, Sarpalli Raju, S/o Late Narsimha Aged about 49 years, Occ. Agriculture,

2. Sarpalli Ravi, S/o tate Narsimha, Aged about 47 years.Occ . Agriculture

3. Sarpalli Naveen, S/o Late Narsimha, Aged about 42 yeirrs, Occ: Agriculture All are R/o Batasirrgaram village, Abdullapurmet lt/landal, Ranga Reddy Dislr ct For the Petitioners : Sri .J Ashvini Kumar, Advocate For the Respondents . liri C. Kumar, Advocate The Court made the follow'ing: ORDER '..Respondents/ Petitioners ) '1,/ HON'BLE SRIJUSTICE LAXMI NARAYANA ALISHETTY- CIVIL REVI SION PETITON No.1542 of 2024 ORDER: Heard Sri J.Ashvini Kumar, learned counsel for the revision petitioners, and Sri C.Kumar, leamed counsel for the respondents. Perused the entire material available on record

2. This Revision Petition is filed challenging the order, dated

18.04.2024, passed by the Additional Junior Civil Judge, Hayathnagar in I.A.No. 137 of 2020 in O.S.No.l98 of 2020, whereunder the application filed under Order XXVI Rute 9 of the CPC fited by the defendants was allowed.

3. The revision petitioners are the plaintiffs and the respondents are the defendants in t[.re suit

4. For convenience, hereinafter the parties will be referred to as they are arrayed in the suit. 5 The brief factual matrix of the case is that the plaintiffs fited suirO.S.No. 198 of 2020 for perpetual injunction against the defendants in respect of land admeasuring Ac.O.32 guntas in Sy.No.10/92 and Ac.0.07 in Sy.No. l0/97, total admeasuring t 2 LNA, J CRP.No.154.t oJ 2024 Ac.0.39 guntas irr Batasingaram Village, Abdullapunnet Mandal, Ranga Reddy Disr.rict

6. In the plaint, the plaintiffs aveffed that originally tLre suit schedule land'r,as assigned by the then Govemment in far. our of their father-Sarpalli Narsimha in the year 1964; that raithrr pass book was also issued in their father's name by the Tahsildar, Abdullapurmt)t that after the death of their father, on their application, tlieir names were entered in the revenue records; 'that they are in poss:ssion and enjoyment of the said land; that they have also obtained crop Ioan on the suit schedule land; and that the defendants with(lut any manner of right or title over the suit schedule land are interfering with their possession and thelefore, the suit for perpehral injunction is filed

7. The deflendants entered appearance and filed their rvritten statement denyrng, the averments made in the plaint and conl.ended that the same alc false and baseless. They averred tha,. they purchased r,he land admeasuring Ac.1.34 guntal in Sy.No.10/22l,\,{ of Batasingaram Village under registered sale .deed bearing clc,cument No. 13935/2019, dated 30.10.2019 from ') 3 LNA, J CRP.No.I542 oJ 2021 their vendor-Sandeep Jain and the said Sandeep Jain purchased the land under sale deed bearing document No.4987l2006, dated

02.03.2006; that the name of Sandeep Jain was mutated in the revenue records; and that while mutating the name of Sandeep Jain, the Tahsildar, Abdullapurmet has assigned sub-division number to the said land as Sy.No.10/22lAA. The defendants further averred that subsequently, pattadar passbook was also issued to the defendants; that the plaintiffs are no way concemed with the said land belonging to the defendants and the suit is filed on false and baseless allegations and prayed to dismiss the suit.

8. White the said suit was pending for adjudication, the defendants filed I.A.No. 137 of 2020 for appointment of Advocate- Commissioner to measure the suit schedule land with the assistance of the Assistant Director, Survey and Land Records, Ranga Reddy District, contending that they filed O.S.No.29l of 2020 before the same Court and ad-interim injunction was also granted in their favour; that the plaintiffs are claiming their land in Sy.Nos.l0/92 and 10197, whereas the lands being claimed by the defendants are in Sy.No. 10/22lAAof the same Village, i.e., Batasingaram Village; 4 LNA, J CRP No.l 54.t ol 2024 that the deferrdants approached the Tahsildar, Abdullallurmet Mandal, for survey of tand and paid requisite fee, however, in view of issuance of rotice by the plaintiffs' counsel to the Tahsildar, survey could noL be conducted; and they finally averred that appointment of (l,cmmissioner for measuring the suit schedu.e land with the help of Assistant Director, Survey and Land Reccrds, is necessary for proper adjudication olthe matter since both tht: lands are situated in the same Vittage and also to put a quietus to the dispute. g. Opposin;g the said apptication, the plaintiffs filed coun:er and averred that as the trial of the suit is not yet commenced, appointment o1' (lornmissioner fbr measuring the suit schedule land amounts to co[e,:tion of evidence, which is impermissible under law and finall'y contended that no grounds are made out by the defendants fbr appointment of Commissioner. The plaintiffs, however, admitt:d that the defendants filed O'S.No.28 1 of 2020 for perpetual injur.rt:tion and the same is pending before the: same Court. It was specifically avened that the defendants are n'lver in 5 LNA, J CRP.No.I512 of 2024 possession of the suit schedule land in O.S.No.281 of 2020 and prayed to dismiss the application.

10. The trial Court, based on the aforesaid pleadings ofboth the parties, and also the grounds urged by the defendants for appointment of Commissioner, has allowed the application, vide order dated 18.04.2024 by relying upon the judgment of this Court in Tangella Ranga Retltly Vs. Koppula Srinivas Reddyt, with an observation that when disputes arise regarding boundaries, extents and survey numbers, physical verification and on-site measurement by a Surveyor are deemed necessary. The trial Court also observed that appointment of Commissioner is not intended to determine possession of the disputed property. Challenging the said order, the present Civil Revision Petition is filed by the plaintiffs. 1 1. Learned counsel for the revision petitioners/plaintifl-s contended that the apptication filed by the defendants for appointment of Commissioner in a suit filed by the plaintiffs for perpetual injunction per se is not impermissible and contrary to law; and that as the suit is filed by the plaintiffs seeking perpetual ' 2023(6) ALD 637 6 LNA, J CRP.No.1542 of 2024 injunction, the br-rrden is on them to prove the case. He further contended that nreasuring the suit schedule land and fixing the boundaries arnounts to collection of evidence, wh.ch is impermissible under law. He further contended that as a c()unter- blast to the present suit, the defendants filed O.S.No.281 of 2020 for perpetual injunction and as such they cannot file and maintain an application fo,: appointment of Commissioner for measurement of the suit scht:dule land in the suit filed by the plaintiffs. Ieamed counsel finally contended that viewed from any angle, the impugned order is erroneous and unsustainable and the same is liable to be dismissed.

12. Per conl.ra. leamed counsel for the respondents/deft:ndants contended that the latest position of law is that Commissiotrer can be appointed even in the suit filed for perpetual injunction and that there is no bar rmder law for filing such an application by the defendants ev,3n in a suit filed by the ptaintiffs Ior perpetual injunction; that rhe land claimed by the ptaintilfs is in Sy.No.10/92 and 10197, whereas the land claimed by the defendantri is in _Sy.No.10/22lA.A of the same Viltage, i.e., Batasingaram \/il[age, ) l LNA, J CRP.No.I542 oJ 2024 therefore, it is proper and necessary to appoint Advocate_ Commissioner to measure and demarcate the lands being claimed by the respective parties and also to verifo the ground reality, which shall only aid the rrial Court in proper adjudication of the suit and prayed to dismiss the present Revision petition. 13. In support of his submissions, learned counsel for the respondents/pla inti ffs re I ied u pon the following j udgments : _ (i) Mohd. Taher euershi and anorher Vs. Syed Abdul Saleem Pasha2 (iD Kare Narsimulu Vs. Gaddamidi Siddaiah and others3 (iii) V.A.Innova Alloy Steel Tech pvt Ltd, Hyderabad Vs. Avinash Dagaa (i") Haryana Waqf Board Vs. Shanti Sarup and others5 (u) P.Sreedevi V. IVLN Venkata Lakshmi Narsimha prasad6 (vi) M.Yadaiah and anorher Vs. M.Chilkamma and othersT 'z zozolsy ALD s51 (TS) '.2021(2) ALD 687 (rS) ' 2021(1)ALD e2 (rs) 5 (2008) 8 scc 671 o 2020(6) ALD 99 (TSXDB) 7 zoz2(z) ALD 299(TS) Xr 8 LNA, J CRP.No.l 542 'tf 2024 (-' (vii) Yedamakanti Laxma Reddy Vs' Nizam Sugars Lirnited Q'JSL) and anothers 1 4. This Corlt has bestowed its attention to the submisrsions advanced by learned counsel for both the parties and thoroughly perused the afirlesaid judgments relied upon by the Leamed counsel for the respondents/plaintiffs'

15. A perusal c,f record would disclose that the plaintifls are claimingthelancinSy.No.l0/22lAA,whereasthedet-endants'are claiming their l,anrl in Sy.Nos.10/92 and l0/97, however, both the lands are situatecl in the same Village, i e', Batasingaram VLllage' Abdullapurmet lvlandal, Ranga Reddy District The claim of titte of the plaintiffs 1s based on purported assignment made in lav cur of their father in the year 7964 and subsequent issuance of pattadar passbook and title deeds in their favour by the Tahsildar, Abdullapurmet l,{andal, whereas the claim of title c'f the defbndants is b,as;ed on registered sale deed,, dated 30'10 20i9' It is the specific cirse of the defendants at the time of mutation ol- name of their vendor-sandeep Jain in the revenue records, the Tal sildar, 8 2023(4) ALD 348 [TS) 9 LNA, J CR?.No.1512 of2021 Abdullapurmet Mandal, has assigned sub-division number as Sy.No.10/22lAA. The defendanrs contended that that they filed application for survey of land since there is dispute with regard to location and that the ptaintiffs are claiming non-existent land, however, the Tahsildar despite paying requisite fee could not survey the land in view of objection raised by the plaintiffs.

16. It is settled principle of law that when there is a dispute with regard to location and identity of the land, it is always advisable and appropriate to appoint Commissioner to survey the land with the help of Assistant Director, Survey and Land Records, to identifu the location ofthe disputed land by ascertaining the survey number in which it is situated, which aids or assists the Court for proper adjudication of the matter

17. It is apposite to refer to judgment of the Hon'ble Supreme Court in Haryana Waqf Board's case (cited supra), wherein it is held that it is appropriate for the Court to direct investigation by appointing a local Commissioner under Order XXVI Rule 9 CPC for demarcation of land. l0 LNA, J CRP.t\o.1542 of 2024 (

18. A Divisic,n Bench of this Court in P'sreedevi's case (cited supra), at paru -.\'t' of the judgment held as under:- "Wen thtt a,rtpellants are claiming land in Sy No'85/I a separate su:b-division of Survey No'85, and the respondenls are claiming land in Sy'No 85/2, a diJ.ferent sub-division in the same survey number, it was incumbenl on the par t of the Court below to first appoint a Surveyttr in l.A.lr'o 620 of 2017 and get first Sy'No'85/i and Sy.No.B5/.1 c,n the ground and the plaint schedule' land localized tts \uas sought by the appellants "

19. In M.Yadaiah's case (cited supra), a leamed single JuCge ol this Court held that appointment of Advocate-Comtnissio ner to note down the phlzsical features does not amount to facilitating the party to coll,:ct :vidence. The Court has got ampie porver to discuss and detetmine the extent to which the Commissroner's report can be tal:en up into consideration for coming to a just conclusion with rergard to the merits of the case.

19.1. It rvas fudher observed as hereunder:- "Noting down the physical features that exists at the disputecl property themselves does not change the circwnsta'nces present therein and the Ad'ocale Commi.ss,:oner's report would always aid lhe Oourl in v 11 LNA, J CRP.No.1542 oJ 2024 coming at a just conclusion with regord to the presence of a situation that exists at the disputed property. Admiltedly, 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 warront 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-Commissbner would inspect the disputed property at all times in the presence of the parties to the suit or their authorized.. representatiyes including lheir counsel except in cases, where such parties themselves reslrain from making their presence in spite of issuance of notice" Also, low 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 warranl. Such being the case, it connot be helcl lhat only /br the purpose of collection of evidence, the petitioners have moyed application for appointment of Advocate- Commissioner. "

20. In V.A.Innova Alloy Steel Tech. Pvt. Ltd., Hyderabad's case (cited supra), a leamed single Judge of this Court held that there is no absolute bar on appointment of Advocate-Commissioner in a 12 LNA, J CRP.,vo.1542 of 2024 suit filed for peryretual injunction as per the provisions of Sr:ction 75 or Order XXVI Rule 9 CPC.

21. Applying the ratio laid down by the Hon'ble Supreme Court in Haryana Waqf Board's case (cited supra) and by a Division Bench of this Court in P.Sreedevi's case (cited supra), it is always appropriate to appoint an Advocate-Commissioner for sun'ey of land when ths16: is a dispute with regard to location and identity of the disputed land

22. [n the present case, the plaintiffs are contending that the land claimed by thenr is in Sy.No.l0l22lAA, whereas the delendants claim the land in Sy.Nos.10/92 and 10197 of the same Village, i'e', Batasingaram ViLlage and therefore, ratio laid down by the Hon'ble Supreme Courl. ir.r Haryana Waqf Board.'s case and a Division Bench of this ClouLrl in P.Sreedevi's case are squarely applicable to the facts of the pt't:sent case.

23. [n vieu' ,rf the above facts and circumstances of the case and also in the light of the ratio laid down by the Hon'bie Strpreme Court in Haq'ana Ll'aqf Boartl's case (cited supra), wtLich is \uarely appli,:able to the present case, this Court is cf the l3 LNA, J CRP.No.l542 o! 2024 considered view that the trial Court rightly allowed the application filed by the defendants for appointment of Advocate_ cor-nmissioner and this court do not see any merit in the Revision Petition warranting interference by this Court in the impugned order, therefore, the Revision petition is liable to be dismissed. 24. Accordingly, the Civil Revision petition is dismissed. 25. Pending miscellaneous applications, if any, shall stand closed. To, //TRUE COPYII Sd/. L. LAKSHMI BABU ASSI TANT REGISTRAR ECTION OFFICER

1. The Additional Junior Civil Judge_cum_Vll Additionat Metropolitan ^ Magistrate, at Hayathnagar ? 9n" CC to Sri J. Ashvini"Kumar, Advocate tOpUCl 9 9n" CC to Sri C. Kumar, eJvoiiteiopuCl'-' "" 4. Two CD Copies s I *: 11-t E. s 'ti o i3 2E rlti] zi5 - dltr- \'- -*.. . ^_.,( .... HIGH COURT DATED:512|2025 ORDER CRP.No.1542 of 2024 REVISION IS DISIViSIJED G)*?sW