The High Court · 2025

2. Th,: r'-'r ision petitioner is the defendant in the rnair suit filed by th: rt':,pondents herein vide O.S. No. 159 o1' 2.015 for cancelLa.ior o1' rcctification deed dated. 13.11.2102 and mandatcr',r' rr.iunction r-rnder Order VII Rule I p/u, $1:qr ion 26 of C.P C l. Ih,' ':spondents hercin have filed tht r nderlying interlo:L lor', application under older XXVI Rrle ') f/.v $ss1i., 151 of C.['.t, ir.r the main suit filed by them for rlppc,intr Lent of an advoc: Ir ccr rmissioner to localize the suit sch,:dr.rl: pr rperty by survcv i niL ,lemarcation of Sy.Nos.l2l &. 12')- of -fh rornkunta Villagr: ir. -i to submit report with regald to the exter r of land 2 .l covered by the both the survey numbers of the suit schedule property.

4. The court below considering the nature ofreliefsought for in the suit, had partly allowed the underlying Interlocutory Application. Aggrieved by the same the petitioner herein had fited the present revision.

5. Heard Sri G.M. Mohiuddin, learned Counsel for the petitioners, and Sri. K. Ravi Mahendar leamed Counsel for Respondent No. 1 and perused the record. 6- The Revision Petitioner contends that the respondents have filed the suit for cancellation of the Rectiflcation Deed dated

12.11.2002 is not based on any valid legal ground such as fraud, misrepresentation, or coercion. Instead, - it has been filed solely due to a land dispute with one K. Satyanarayana Goud.

7. The petitioner contends that the suit is clearly barred by limitation and is liable to be dismissed on that ground alone and no survey report has been hled to support the claim of re- verification of lands by the respondents, despite referring to it in pleadings and evidence k l

8. Thr: p.'l tioner contends that the non-joinJer of K' Satyanara vl t t.t rt r.loud, a necessary party, renders tfte lxain luit and underlvittg. rnt:rlocutory application defective anrl tl Le said interloc r.tto r '1' application is a disguised attempt to gather e 'idence, which is irrnt rrrissible, especially at the final stage ol'thc S uit'

9. fh: re:itioner contends that the respondentsr ha"e n >t stated any valid rl:asrtr for seeking cancellation of the r':ctificati rn deed dated. 13.11 l('02 and do not dispute the identitl', pr'sse'sion' or extent of tt e I i titioner's propeily; that the respontlent No' i has no locus stand. il ieek survey, having already sold th: en:ire 'xtent in the relevrtnt -.r t vey numbers inastnuch as the petitione:' hal been in continuor.ts 1:, rs;ession since purchase from the re;por clcn s herein undel a 'r' ji:tere(l sale deed dated. 12.06.2002 a-rd colrsr ructed a boundarl r,'a l.

10. The pr'ti.ioner also contends that the rectif catiJn r eed was executed F) rre respondents themselves after noticing an eror in survel, n.rrrbcr, and the sale was made for valid consiclerr tion and the underl , iril-t application is filed only to gather evident e and is liable to bre dir;rnissed. 4

11. Per contra, respondents contend that, they have filed a suit vide O.S. No. 159 of 2015 for cancellation of the Rectification Deed dated 13.11.2002 and for a mandatory injunction to execute a fresh rectification deed correcting the surwey numbers and extents mentioned in the principal Sale Deed dated 12.06.2002 inasmuch as the existing deed is not showing the true physical location of the schedule property. Respondent No.1 further contends that the suit schedule property originally betonged to his father and, upon his demise, devolved upon to him, his mother, and his brother, all of them executed General Power of Attorney in his favour authorizing him to deal with the said land.

12. The respondents contend that an extent of Ac.2.l5 guntas of Sy. No. 122 of the suit schedule property was sold by the respondents to the petitioner through the registered sale deed dated.

12.06.2002 without any survey or demarcation with regard to its location. They further contend the petitioner requested them to execute Rectification Deed stating that the land purchased by him entirely was not situated entirely in Sy. No. 122 as mentioned in the sale deed and further informed the respondents that the tand 5 sold is lcc at:l in two survey numbers i.e. an e>:tent of Ac. 2.03 guntas in S' No. 121 and Ac.0.12 guntas n Sy,. ,,1o. 122. Thereflore. tlr,: rc'ctification deed was executed n good laith on

13. 1 I 2()()_l

13. The res:ondents further contend tl-rat where a t-alse c aim was raised bt ont' ll. Satyanarayana Goud, then respo tder ts u rderlook a re-veri [-ir:ati,r-r using authenticated survey records and di;covered that the l)r )p3r'.y is actually situated in Sy. No. 121 to an :xtent of Ao. Ll2 gts ard in Sy. No. 122to an extent of A,:. l.l3 rLs rvhich is contrarl, tr, t [-rc details in the rectillcation deed. 'i.he res rondents further cortcr tl that upon requesting the petitiorer tc cz ncel the incorrect rle<rl and enter into a new one reflecting the accurate position, t.f e retitioner refused to cooperatc.

14. T1-'e Rr:,;pondents also contend that the only issu': in. olved is wit.h regirr,.L l( thc correct survey numbers and e>:tents ol the suit schedule plo:er1! in each of such surwey numbers h,:reir . Since, the petir.ir,nr:r did not agree for a proper .rerilicat on, the respondent:; Ir,r I no altemative but to file the subj,:ct sr_rit r nd seek fbr appo. n.mer t ol an Advocale Commissioner flrr sun.e .,ing the 6 land. The respondents further contend that such a survey, with the help of the Govemment Surveyor and authenticated records, 1S essential to localize the suit schedule property correctly and enable the Court to adjudicate the matter effectively.

15. The Trial Courl upon hearing both sides and on perusal of the record, observed that the Advocate commissioner can be appointed to get the suit schedule property localized by survey and demarcation of Sy.Nos.12l & 122 of Thoomkunta Village and to submit report with regard to the extent of land covered by the schedule property of respondents herein in each of the above two survey numbers and requested to complete the commissioner work as early as possible preferably within 45 days from the date of issuance of warrant of commission

16. I have taken note of the respective contentions urged.

17. The sole issue fatling for consideration before this Court, is as to whether an Advocate commissioner can be appointed in a suit for cancellation of rectification deed and mandatory injunction. 7

18. In ,'rrrl,:- to examine the issue at hand, it is ben,:llci tl to refer to Order 2,i l{ule 9 of the Code, 1908 which reatls as un( er Cr.rr, itt'': it.tns for local inves li4qliien;- "ln ,r ..r' ,;ttt irt which the Court deems a local inves,igtrtton k bc reqtti:it,' t r propar for the purpose of elucidaling un), ntdllc m dis,ture ,t; ttl' ascertaining the markel-value of any oropt:rty or thc {,) oltttl of any mesne profits or damages ot onttuul 'tcl prc/it ;. rrt,' (:ourt ma!- issue a commission Io sltch pe rson t , it thittk -/ir t'irLtcting him lct make such investigcttion tt d l') rtl ot't the'e ,n t,) lhe Court. Pn','tda irttttt. v,here the State (iovernment has nalc ru't.\' u to tha pt:rs'tnt to whonl such commission shctll be issu,,tl. rle t\,rl .sholl ix lt uttd bv such rules. From a re lc irg of the said rule, it would clear t[]at i IS he power of the .r'ial llouft to appoint an advocate cormis;ion )r and is discretionrr'. in nature

19. 'fht er.;.ra.hile High court for the state of Andhra Iradesh in Velago Norq ana and Ors. Vs. Bommtkanti Sriuivus r,nrl Orst , observc Lhrrr such discretionary powers vested in the cor rt should be exer<:i: ,:c i r a jud icious manner while taking nto con ideration the natu"e ot'-lre dispute. The relevant observatiors arr: as rnder: '2o la 1tt ll.l 6,r - t:. 8 o I "13. Under Rule of Order 26 in any suit in which the Court er for the deems a local invesligalion Durpose oI elucidatins any maltcr in di.snule. il con $sue a commission. Though issuing comntission is discretionary, the is necessarv or DroP Court has Io exercise discrelion in an appropriole andjudicious manner. The purpose and ohiecl o locll intestisation under Rule 9 is lo have lhe evide nce /iom the s,nol itself to have a f inp of the disoute betv'een the correct and DroDer understand. pqfj!j?!- The local invesligation report submitted by the commissioner enables the Court to make a correct assessment of evidence on record. Wen the Court is of the opinion that the material on record requires elucidation' it would be just and reasonable to issue a comrnission .for the said purpose' A commission at the instance o.f one of the parlies to find out o\ lo who is in possession o;[ the property connot be issued ar it enables the party seeking appointment of commissioner to collect or gather evidence. But, where there exists a dispute regarding suit property, the Court has to necessarily issue a commission with the assistance o.[ a surveyor, otherwise, il would be highly dfficutt .[or the Court to completely and effectively resolve the dispute and is-suiig such cotnmission would no)t amount lo colleclion ttf et'idence. Commission for the said purpose can be issued prior lo or qfter the parties let in their evidence."

20. Thus, the nature ofthe suit plays a crucial role in considering the appointment of an Advocate Commissioner. In the present case, the suit is instituted by the respondent's seeking cancellation of the Rectification Deed dated 13.11.2002 and for a mandatory "/ 9 injunction d r t cting execution of a fresh Ret:tific atio I Deed cotrectinl: tlt sulvey numbers and extents m'lntiolled in the principal S:l: Deed. On applying the legal prin:iplt' cn .tnciated above lc ht' lacts of the present case, it is r:r'id':nt -hat the provisiors o1'()rder XXVI Rule 9 CPC are not attritctc(I.

21. Il ls :r i,r.tled proposition of law that the po'wer ol tl re Court under C rclet XXVI Rule 9 CPC to appoint a r 1 dvocate Conrrnis: ic nt r is discretionary and must be exerciscd .iud ciously, having reg,rrrl o the facts of the case and the nat.ure of t re relief sought. Ir Lhr: ]rresent case, the suit has been filed lor can:ellation of the R:ctiti,:rtion Deed dated 13.11.2002 and lbr rr rn rndatory injunctior dir:cting execution of a fresh rectiticati,rn r eed for con'ectio r o t' sr-trvey numbers and extents tnt:ntic,nccl in the principal ! a l: Deed. lt is pertinent to note that the resl 'ondents themselv:s hr t e already undertaken re-verificatio'r of thc' location of the larLd, st ld to various purchasers in Survey ltJos. 1 2 1 and I22 of Toornl<r rtr y'illage with the aid of authenticaterl sut'r'ev records. Even af:e st ch re-verification, no necessity ari;es for the appointrcnt :f an Advocate Commissioner t,l grt t re land l0 o '..,, surveyed once again inasmuch as the dispute herein primarily revolves around the legality and validity of the rectification deed and does not pertain to the physical features, identification, or possession of the subject property. Hence, the provision of Order XXVI Rule 9 CPC is not attracted to the present case.

22. It is also pertinent to note that the very foundation of the respondent's suit before the trial couft rests upon the so_called resurvey allegedly undertaken at their instance, rvhich is claimed to indicate that the land sold to the petitioner is situated in survey numbers different from those mentioned in the rectification deed. It is incumbent upon the respondent to establish these claims in the suit by adducing proper documentary evidence and by submitting themselves for cross-examination by the petitioner/defendant. However, without undertaking the said essential exercise, the respondent has filed the present interlocutory application with an objective to collect or gather the evidence to substantiate their claim made in the suit. Thus, such an action of using interim proceedings to secure evidence that should otherwise be adduced during the trial cannot be permitted under law. .) ,t& -r- t1

23. It is fl.Lrl l.rer pertinent to note that the princiual sale leed was execute( ,,r', 12.06.2002 and the rectification deed rvas 3xecuted u.itlrirr a shcrt period i.e., on 12. I 1.2002 and the cross exe rnination of the p,rti:-i<rrr:r rvas done on 02.04.2019. whererts tf e ur rder'lying interltrcr lc rr' rpplication was filed in year of 2022. From l re above series o'th,r events, it is evident that underlying inte locutory applicatiorr f cr appointment of an Advocate Com'nissior.rt r is filed atier the corr:lusion of the trial. Thus, it cannct be en eflained (See: tr(. l(. l/,:lrsumy v, N. Palanisamy2)

21. H,rnce. n the present case, no issue arises that ne, essitates local inr er;ti1: l.ion or physical verification of the propcrtl through thc appLrintn'i'nt of an Advocate Commissioner. ' re t'ial )ouft has I l passed I !:ircral order directing such appointm:nt. u,ithout considering tl t specific nature of the suit. It is per.inerLt to rlote that the prest:r'r. st i: is lor cancellation of a rectificatit,n dr:ed. which is purely a que st.on of title and legality of documents, arlc not one involvin: .[i:rp rted boundaries or physical featurer; that re luire on- '1zo tt.y t t ;i .t .:;5 t2 o site inspection. Thus, the provisions of Order XXVI Rule 9 CPC' have no application to the present proceedings'

25. Therefore, in the light of the settled position of law' this Cour-t is of the view that the impugned order dated 0l 08 2023 appointing an Advocate Commissioner suffers lrom infirmity and perversity.

26. Resultantly, this Civil Revision Petition is allowed' The order dated 0 i .08.2023 in I.A. No' 291 of 2022 in O'S' No' I 59 of 2015 passed by the Principal Senior Civil Judge' Medchal Malkajgiri District at Medchal is set-aside' No order as to costs' Consequently, miscellaneous petitions pending if any shall stand closed. //TRUE COPY// Sd/. A. PRATHIMA EPUTY REGISTRAR SECTION OFFICER To,

1. The Court of the Principal senior civil Judge -cum- Assistant secnior civil Judge, lv'ledchal-Malkajgiri District at Medchal

2. One CC to SRl. G.M MOHIUDDIN, Advocate [OPUC] 3. One CC to SRl. K. RAVI MAHENDER, Advocate [OPUC] 4. Two CD Copies Pcsd/gh HIGH COURI- DATED:2010ti12025 ORDER GRP.No.285B of 2023 o O k t 41:= J' I4 01,tu 2U sS l::l I r I [1-r (. ALLOWING'rHE CIVIL REVISION PETITIOi\I 6 0 o\