The High Court · 2025

...Respondents/Respondents/Defendants IA NO: 1 OF 2025 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 grant stay of all further proceedings in O.S No.344 of 20" on the file of the Court of the ll Additional Junior Civil Judge-cum-ll Additionzl Judicial Magistrate of First Class at Karimnagar, pending disposal of the above [l rvision petition. Counsel for the Petitioner: SRI SUREDDY PRIYANKA Counsel forthe Respondents: SRI P.SAJAN KUMAR The Court made the following: ORDER I THE HONOURABLE SRI JUSTICE N.TUKARAMJI CIVIL REVISION PETITION No.2253 OF 2025 ORDER: This revision is directed against the propriety of the order dated 20.09.2024 passed in l.A. No. 618ot2023 in O.S. No.344 of 2014 by the Court of the ll Additional Junior Civil Judge-cum-ll Additional Judicial Magistrate of Frrst Class, Karimnagar.

2. Heard Mr. Sureddy Prryanka, learned Counsel for the petitioner and Mr. P. Sajan Kumar, learned Counsel for respondents.

3. The revision petitioner is the plaintiff in the suit, who instituted the proceedings seeking a declaration and perpetual injunction in respect of the suit schedule property (hereinafter referred to as "the subject property"). During the pendency of the proceedings, the petitioner filed an application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short "CPC"), seeking appointment of an Advocate Commissioner in respect of the subject property, namely, a house site adjacent to House No. 2-99lA, admeasuring

347.33 square yards, situated at Asifnagar Village, Karimnagar Mandal and District. The purpose of the appointment sought was to { ( ? direct the Commissioner to note down the physical f ratures of the subject property, to take photographs thereof, and 1( measure the same with the assrstance of a qualified Surveyor. 're trial Court, upon considering the merits of the application, dec I red the relief sought and passed the impugned order. Aggrievec thereby, the present revision petition has been filed. 41 Learned counsel for the petitioner submits that the trial Court failed to appreciate that there existed a genuine dis;1 ute regarding the physical features of the subject property. To est,blish that the respondents were not fully aware of such physic€rl features, the appointment of an Advocate Commissioner was r )cessary and warranted. She further contends that, since 1i e suit is a comprehensive action for both declaration of title rnd perpetual injunction, the appointment of an Advocate Commissir ner would not cause any prejudice to the interests ofthe respondent

4.2 ln addition pleaded that, the material gat ered by the Advocate Commissioner would be confined to recorc i tg the existing physical features and measurements, which does r ot amount to collecting evidence lt is argued that the trial Court fai :d to consider the settled legal position that an Advocate Commir;, ioner may be appointed in cases where a dispute exists regir drng physical J I I I w 3 features. Therefore, the reasons recorded by the trial Court for declining the reiief are untenable, warranting interference by this Court

4.3. ln support, learned counsel for the petitioner placed reliance on the judgments of this Court rendered in Civil Revision Petition No. 3266 of 2007, dated 01 .04.2011, and Civil Revision Petition No 3760 ot 2014, dated 1 1 .1 1 .2024 and asserted that, in those cases, it was held that where disputes exist regarding boundaries, physical features, or allegations of encroachment, mere recitals in documents may not reveal the true state of affairs, and therefore, appointment of an Advocate Commissioner to measure the land with the assistance of a Surveyor may be necessary' lt was further held that there is no legal bar to the appointment of a Commissioner even in a suit for injunction, for the purpose of recording physical features and possession over the property. On thrs basis, counsel prays for allowing the present petition.

5. Per contra, learned counsel for the respondents/defendants contends that the father of the revision petitioner, who had previously instituted a suit for perpetual injunction in respect of the very same property, had suffered dismissal of the said suit, both at the tnal stage and in appeal. lt is further submitted that even the ( 4 Second Appeal, vide S.A. No. 202 ol 2020, is pr€,rently pending before this Court. Against that backdrop, the petitior:r's father by creating nominal registered grft settlement deeds, har; sought to forst the present suit through his son, the revision petitior ( r who has no independent right or title over the subject proo )rty Counsel therefore argues that the petitioner, claiming throu;h his father, cannot maintain a fresh cause of action. The tria Court, havtng considered all these aspects, rightly rejected |" ) application. Accordingly, rt is submitted that no tenable grc r nd exists for interference in the present revision, which deserves t: be dismissed.

6. 7 lhave perused the material on record ln light of the rival pleadings, the point t at arises for donsideration is, Whether the prayer for appoir tment of an Advocate Commissioner to record the physical i atures of the subject land is justified and proper?

8. The revision petitioner, in his supporting aflir avit, asserted that he is the owner and possessor of the subj€ ( : land, which, according to him, includes a cattle shed puro ased by his grandfather under an oral simple sale dated 16.0;' 1964 for valid consideration. { I .) 5

9. lt is further contended that the respondents basing on a registered sale deed dated 08.01.2010, claiming ownership over land admeasuring 373.33 square yards, described therein as a dismantled house bearing No. 2-99. By contrast, the revision petitioner asserts ownership over 347.33 square yards comprising a compound wall, gate, toilet, water tap, two tin-roofed cattle sheds (one located on the eastern side and the other on the western side), four large trees approximately 40 years old, and a large heap of cattle dung. According to the petitioner, these physical features are essential for a just adjudication of the dispute, thereby necessitating the appointment of an Advocate Commissioner to record the same.

10. However, a careful examination of the petition reveals that, apart from the bald assertion that the physical features and measurements of the property are required for a just decision in the suit, no specific or cogent grounds have been set out to establish such necessity 11 . Significantly, in the plaint filed by the revision petitioner, no detailed description of the physical features of the subject property has been furnished. Likewise, in the wriften statement filed by defendant No. 1, there is no dispute raised with respect to the physical features or any particular physical condition of the land. t , 6 The entrre defence of the respondents rests on the t ontention that the petitioneis father had already instituted a suit 1c r injunction in respect of the same property, which stood dismissec at all stages, including appeal

12. ln the above factual background, this Court I nds no prima facie ground to establish that recording of the physi, al features of the property is necessary to arrive at a just conclusior on the issues framed in the suit Even otherwise, the petitioner has not explained why he could not obtain appropriate records or malr rials from the competent revenue authorities, who maintain lanc records and boundary details in the ordinary course.

13. Judicial precedents, including H.S. Vankate:;t Reddy v. L. Prabhakar Reddy (AlR 2013 SC 1362), reite,r rte that the appointment of an Advocate Commissioner under Or ler XXVI Rule 9 CPC is not to be granted as a matter of course, bul rnly where the Court is satisfied that local investigation is necessa', or proper for elucidating the matter in dispute. Similarly, this Co "r t in CRP No. 3266 of 2007 (decided on 01.04.201 1) has held that i ppointment of a Commissioner cannot be used to collect evidence,A lich a party is bound to produce on its own. i i I t I l l 7

14. ln the lnstant case, neither the pleadings nor the evidence disclose any dispute as to the physical features of the land warranting such an appointment. On the contrary, the plea appears to be an attempt to create evidence rather than to assist the Court in clarifyrng exrstrng drsputes.

15. Accordingly, this Court finds that the conclusion drawn by the trial Court in refusing to appoint an Advocate Commissioner is just and reasonable, and no interference is warranted. The impugned order, therefore, deserves to be confirmed.

16. Resultantly, the Revision Petition is dismissed. No costs Miscellaneous Petitions, pending if any, shall stand closed. SD/. S.MALLIKARJUNA RAO ASSISTANT REGISTRAR //TRUE COPY// ECTION OFFICER \r To, 1 ThellAdditionalJuniorCivilJudge.Cum-llAdditionalJudicialMagrstrateof First Class, Karimnagar.

2. One CC to Ms SUREDDY PRIYANKA, Advocate [OPUC] 3. One CC to Sri P.SAJAN KUMAR Advocate [OPUC] 4. Two CD CoPies NV B/PSL HIGH COURT DATED:1710912025 t1 E SIA \ c) l( {- .Z ;) , ORDER CRP.No.2253 of 2025 DISMISSING THE CIVTL REVTSION PETI']'ION WITHOUT COSTS IV \P,