The High Court · 2025

tA No: 1 oF 2024 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 pleased to stay all further proceedings in respect of orders in lA No, 66 of 2024 in lA No. .13 of 2024 in OS No 17 of 2024 dated 2210712024 on lhe file of in the court of the l- Additional Junior Civil Judge-Cum-l-Additional Judicial Magistrate of F.C. pending disposal of the main Civil Revision Petition (FORMAL PARTY) Counsel for the Petitioners: SRI P RAMA SHARANA SHARMA Counsel for the Respondent: NO 1 SRI A RAVINDER representing SRI BANDAR SRIKANTH Counsel for the Respondent: NO 2 NONE The Court made the following: ORDER I I I I THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY CIVIL REVISION PETITION No.2987 of 2024 ORDER: This revision is filed by the petitioners herein/defendants, challenging the order dated 22.07.2024 passed in I.A.No.66 ol 2024 in I.A.No.13 of 2024 in O.S.No.17 ol 2024 bY the learned II Additional Junior Civil Judge, at Godavarikhani, wherein the subject I.A.No.66 of 2024 filed by the respondent herein/plaintiff under Order XXVI Rule 9 of CPC, seeking to appoint Commissioner was allowed in part.

2. Considered the submissions of Sri P. Rama Sharana Sharma, learned counsel appearing for the petitioners, Sri A.Ravinder, learned Senior Counsel representing Sri B.Srikanth, learned counsel appearing for the respondent and perused the record.

3. The brief facts of the case are that the respondent/ plaintiff instituted suit vide O.S.No. 17 of 2024 against the petitioners/ defendants for declaration of title and recovery of possession of the land admeasuring 5.45 sq.yards (3'. 10' X 12'.9) in Sy.No.261 situated at Medipally Villagc, Ramagundam Mandal, Godavarikhani and along with the suit, the respondent/ plaintiff filed I.A.No. i3 of 2024 seeking temporary injunction. In the said I.A., the respondent/plaintiff filed the subject I.A.No.66 of 2024 alleging encroachment of land to an extent of 5.45 sq.yards out of 384 sq.yards forming part of Sy.No.26l t ]l 2 t and sought appointment of Advocate Commissioner to note down the physical features of the property. The petitioners/defendants have hled counter affidavit stating that they are the owners and possessors of land to an extent of 298.48 sq.yards and pending adjudication of the suit, the respondent/ plaintiff is not entitled to proceed with the construction basing on the ex parte injunction orders. It is further stated that suppressing the pendency of O.S.No. 19212022 (old O.S.No.86/2017) on the file of Senior Civil Judge, at Godavarikhani, in respect of the disputed property, the respondent/ plaintiff has instituted the subject suit vide O.S.No.17 of 2024. It is also stated that unless the said suir vide O.S.No.192/2O22 rs decided, the respondent/plaintiff is not entitled to seek appointment of Commissioner to note down the physical features of the suit schedule property and prayed for dismissal of the subject I.A., as the appointment of Advocate Commissioner is not warranted in the facts and circumstances of the case.

4. The trial Court vide impugned order dated 22.07.2024 partly allowed the subject I.A.No.66 of 2024 by referring the various decisions of the Hon'ble Apex Court and also this Court for appointment of Advocate Commissioner under Order XXVI Rule 9 CPC observing that there is no legal embargo for appointment of Advocate Commissioner, even in a suit for injunction simplicitor if I there are serious disputes with regard to identihcation and localisation of the subject lands. It was also observed that the Advocate Commissioner can be appointed at any stage of the suit, to resolve the issues invoh,ed, more particularly, when there are disputes with regard to identilication arrd localisation of the boundaries of the property. It was further observed that the respondent/ plaintiff filed application seeking to measure not only the suit schedule property but also the land of defendant No. 1 which is not permissible and allowed the petition partly appointing the Advocate Commissioner to note down the physical features of the plaintiffs land of 384.37 sq.yards in Sy.No.261 situated at Medipally dimension (92.3 x 37.6) which includes the suit schedule land of 5.45 sq.yards (i.e, 3.1O X 12.91. Further the Commissioner was directed to measure the petition schedule property without deducting the road a-nd setbacks of the petition schedule property and measurement shall be noted down separately. The Commissioner was also directed to take assistance of Ramagundam Municipal Town Planning Oflicer and submit report on or before 31.O7 .2024.

5. This Court vide order dated 27.09.2024, while issuing trotice before admission, granted interim suspension of the impugned order dated 22.07.2024. LI I 1

6. Admittedly, the respondent/plaintiff has instituted the suit vide O.S.No.17 of 2024 claiming that he is owner and possessor of land to an extent of 394.37 sq.yards (32.3 X 32.6) in Sy.No.261 situated ar Medipally Village, having purchased the same under registered document No.343/2018 dated 17.O1.201g. It is stated that a suit vide o's'No' 192r2022 (old os No.g6/2017r was fired against the vendor of the plaintiff. pending adjudication of the said suit, the present suit has been instituted by the respondent herein/plaintiff alleging that petitioners herein/defendants are trying to encroach land to an extent of 5.45 sq.yards.

7. It is settled law that in a suit which the Court deems that local investigation is to be requisite, elucidating any matter in dispute of the nature of demarcation of the lands, identification, location or measurement of the rand, locar investigation shourd be done by appointing Advocate Commissioner. In Haryana Waqf Board. as. Shantt Sarupl, the Hon,ble Supreme Court observed as follows: "4. Admittedtu, in this case, an applicatiotl w,,s fi.led under Order 26 Rule Lof,the c-o1e of ciat procid,re-;;i;";';:;;:r:; tls tn t,ior court but tn neu of the fact that it itr,,osapp,opiii;;;',;:::,:::.f ,:J,o:E',:,:I:f ,i,ilJf; ,i,y;:;i;g;, Local Commissioner under Order 2O nur- S Cpi-""""',, 5. The appellate courl found^ thcLt the tial court did not take into consi.deration the pleadings of the parlies *n."-rii deniat on the parr ,r L,n,"la-."ii" ,is",itii. fn!Zi,!rZ,ilf!f,"., iy"- unauthoised possession in respecl of the suit-land ia th.^o"p"rporr3 of tLLe ptoint. But the ontg """io".r$-i"t"r,L);r;,#Zi; i ni' i' i,, "r",#, ii.l I i oi":,Z, *:, de m a r cq t i o n o r trc s u i t "1",'#,i!"-! ;;i,;;i,;!{i; " "i'' i' ii' "J:iT iffi,' "- not io n tr r e a b"fi . " t o n a. o. " ' 1zoosl a scc 671 i

8. Further, it is also settled law that where a local Commissioner's report suffers from non-compliance of the instructions regarding demarcation of the land or is submitted without adverting to the objections raised by the respective parties and irregularities are evident, such a report can be rejected or the fresh Commission may be issued. Sub-rule (2) of Rule 1O of Order XXVI CPC states that any of the parties to the suit may examine the Commissioner personally in open Court touching any matters referred to him, mentioned in his report, or concerning the manner in which the investigation was conducted. ln view of the above and considering that the validity and binding nature of the Commissioner's report are to be decided by the trial Court at the time of disposing of the suit, this Court does not find any irregularities or legal infirmities in the impugned order passed by the trial Court that would warrant interference under Article 227 of the Constitution of India. Therefore, this Civil Revision Petition is devoid of merits and the same is liable to be dismissed.

9. Accordingly, this Civil Revision Petition is dismissed. Miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand closed. No costs. \ To, //TRUE COPY// Sd/- T. TIRUMALA DEVI T REGISTRAR ASSIS E TION OFFICER F.C. Godavarikhani peddapalli bistrict

1. The l-Additional Junior civil Judge-cum-r-Additional Judicial. Magistrate of 2. One CC to SRt p RAIVIA_SHARANA SHARMA Advocate tOpUCI 3. One CC to SRt. BANDAR SRTKANTH nOvocate IOFUC; 4. Two CD Cooies ".r/fi 'Kb|. -A ' I -a-,-.-e----.-_F-, HIGH COURT DATED:08/01/2025 ORDER CRP.No.2987 ot 2O24 I rSEH1 Ie' k o 11 tE3 7Ih s \ * s I)AT C e(.' ;/ DISMISSING THE CIVIL REVISION PETITION B\ \0>