The High Court · 2025

This Civil Revision Petition is filed by the petitioncr.- plaintiff aggrieved by the order dated 21.C8.2019 passed in I.A.No.289 of 2018 in I.A.No.196 of 2018 in O.S.No.87 of 2018 by the learned principal Junior Civil Judge, Kodad.

2. o.s.No.87 of 2018 is filed by the pctirioner - plaintiff seeki^g the rerief of perpetual iniunction lestraining the defendants fi'orn interfering with her possession and enjoyment over the suit schedule propefly. The suit schedule propefty was an agricultural land to an extent of Ac.6- I2.80 guntas in Survey No.41ll situated at Kalakova village of Munagala Mandal, Suryapet District with specific boundaries. Along with the suit, the peritioner - plaintiff filed I.A.No.196 ol 2018 seeking temporary injunction. The det-endants u.rade their appearance and filed their written statcment in the suit as well as counter in I.A.No.196 of 2018. At the time of hea'irg of the I.A, alter the arguments were submitted by the counsel representing the petitioner - plaintiff, the respondents - delendants filed I.A.No.289 of 2018 under order XXVI Rule 9 read with Section l5 I of cPC for appointment of an Advocate commissioner to note the physical features and to measure the entire suit surwey nurnbers in between the 2 Dr.GRR, J crp_3023 2019 petitoners and the respondent and to fix boundary stones with the aid and assistance of the Mandal Surveyor.

3. Their contention was that one Sri Gundu Venkaiah was the Pattadar for an extent of Ac.l l-92 guntas in Survey No.4l at Kalakova Village, Munagala Mandal. The father ofthe dcfendants purchased an extent of Ac.6-00 guntas out oftotal extent of Ac.11-92 guntas in the above survey numbers from Sri Gundu venkaiah on 31.01.1981 through unrcgistercd sale deed and had taken physical possession of the land. The trees aged more than 35 years stand as a distinct boundary between the land in possession of the delendants and the plaintiff. The land of the respondent - ptaintilf was located on the northern side of the trees and the land of the defendants was located on the southern side ofthe trees and prayed to appoint an Advocate Commissioner with the above reliefs.

4. The plaintiff f,rled her counter in the above petition contending that the petition filed for appointment ol an Advocate Commissioner was not maintainable on the facts of the case or as per law. The said petition was filed only to drag on the matter in I.A.No. 196 of 2018. After submitting her arguments and marking the documents on her behalf in the said I.A', the defendants came up with the false petition without submitting their arguments in I.A.No.196 of 2018. The neem trees aged l0 to 25 years were located in the suit property purchased by her through a registered sale deed' The trees i:a..*, r:,-,' "r -rr ri-1 :_; l Dr.GRR, J crp_3023_2019 standing as distinct boundary between the lands in possession ol the plaintiff and defendants was a false story. The suit property was purchased by the ptaintiff from the original owner late Gundu venkaiah and his sons ror a valuable consideration with specific troundaries on all sides and the said document was nrarked as Ex.PI in I.A.No. 196 of 20 I8. The srrne was not de,ied by the defendants. In the year 1987, when the plaintiffpurchased the propefty from the original owner, it was clearly mentioned that at thc southern side was the agricultural land of the vendor i.e. late Gundu Venkaiah . The nol-arised alfidavits of the sons of late Gundu ver-rkaiah were also filed. The petitioners - defendants had no legal claim or right or possession over the suit property. The real controversy of the case was that tl.re total extent of suit survey nurnbers was Ac. 1 1-92 cents, out of that, the respondent - ptaintiff purchased an extent of Ac.6-40 cents and the Irrigation Dcpartment acquired Ac.0-08 cents For canal of SRSP Project from rhe plaintill and the balancc land was Ac.6-12.8 guntas, whereas the petitioners - delendarts were clairning an extent of Ac.6-00 guntas in suit survey numbers through unregistered sale agrcernent dated 3 I .01 . 1 98 1 , which was neither regularized under ROR Act nor obtained any regular registered sale deed from the original owner. The documentary evidence of both the parties was before the court. l he Advocate comrnissioner could,ot be appointed for making an e,quiry about facturn of 4 DT.GRR' J crp_3023 2019 .'itltll''. . \ta,..- . possession of the property in dispute, which was nothing but fishing of information and prayed to dismiss the petition.

5. The trial court on considering the contentions of the counsel representing both the parties observed that by allowing the petition, no prejudice would be caused to the respondent - plaintiff, as she would be having an opportunity to file her objections if any on the report of the Advocate Commissioner allowed the petition for appointment of an Advocate Commissioner to note down the physical features and for measuring the entire land in Survey No.4l and to fix the boundaries with the help of Mandal Surveyor as prayed for by the petitioners - defendants.

6. Aggrieved by the said order passed by the leamed Principal Junior Civil Judge, Kodad, the respondent - plaintiff prefer:rcd this revision. '7. Heard Ms.Aarifa Imran Khan, leamed counsel representing Sri Mohammed Imran Khan, learned counsel for the petitioner on record. There was no representation by the counsel for the respondents though the matter came up for hearing on several occasions.

8. Learned counsel for the petitioner submitted that the trial court failed to consider that the suit was instituted seeking an injunction by the plaintiff to restrain the defendants from interfering with her possession over an extent of Ac.6-12.80 guntas in Survey No.4lll purchased by the petitioner through i / !; Dr.GRR, J crp 3023_2019 registered sale deed. on the other hand, the respondcnts i.e. the defendants relied upon an unregistered or sada sale deed, which was not even regularized. The appointment of an Advocate comnrissioncr was nothing but an attempt to mislead the court by showing possession as on the date of visit of the Advocate commissioner and thcreby project a state of aflails which never existed. only with the purpose of avoiding an order in I.A.No.196 of 2018, the respondents hled I.A.No.289 of 2018 seeking appointment of an Acrvocate coumissioner. The trial courl whilc allowing the application in I.A.No.289 of 20rg had not applied its judicial rni,d to the issue and only on the aspect o1- no pr.ejudicc would be caused to the petitioner - plaintiff, passed the impugned order. 'lhc reasoning of the trial couft was bereft ofjudicial application of minri. The courl below allowed the application not onll' for the purpose of noting dow, the physical featu.es but fol measurernents of entire land in Survey No.4l , and also to fix the bounda.ies with the help of Mandal Surveyor. 'rhe said orders werc beyond the scope of appointment of an Advocate commissioner. Thc trial court failed to consider that the defendants neither filed the counter claim nor a separate suit, but filed an application for appointmcnt of an Advocate commissione. in an injunction application filed by the plaintiff, which was totally un-called for. The trial court failed to consider that the respondents - defendants got sorne false entries made in the revenue records with the help of soffre rcvenue staff and [he said entries r.l.ere cancelled and a crimina[ case was 6 Dr.GRR, J c rp_3 023_2 019 initiated against them by the Joint Collector, Nalgonda and the said document was marked as Ex.P10 in I.A.No.196 of 2018. Without considering all the said aspects and that the petitioner purchased the schedule property under a registered sale deed, the trial court passed the impugned order. The trial court failed to consider the contention of the petitioner that in a suit for simplicitor injunction, an Advocate Commissioner could not be appointed and that too at the instance of the defendants in the suit. The trial court failcd to consider that the appointment of an Advocate Commissioner was sought only as a mode to gather evidence and prayed to set aside the ordcr passed by thc trial court in

1.A.No.289 of 2018 in I.A.No.196 o12018 in O.S.No.87 of 2018.

9. Perused the record.

10. The record would disclose that the petitioner - plaintiff had instituted the suit seeking the relief of permanent injunction against the defendants restraining their interference with the suit schedule property. The suit schedule propefty was shown as Ac.6- 12.80 guntas in Survey No.41l1 situated at Kalakova Vitlage of Munagala Mandal, Suryapet District, with specific boundaries. The southern side boundary of the suit schedule property was shown as agricultural land of sons of late Gundu Venkaiah. The plaintiff is claiming title and possession based on a registered sale.deed. The defendants on the other hand are claiming to be in possession and asserting their title through an unregistered .e- ;]:;:;;:E' Dr.GRR, J crp_3023_2019 sale dced. The suit was at the interlocutory stage, wherein the application for interirn injunction is yet to be heard and disposed of.

11. It is a settled principle of [aw that in a suit for injunction, possession is the primary consideration and not title. The appointrnent of an Advocate comr.nissioner can be'permitted urder order XXVI Rulc 9 of cpc only for local investigation, where such investigation is necessary or expedient in the opinion of the court for thc puryose or elucidating the rnatter in disputc. I{owever, on a perusal ol the pleadings and the petition fired by the defenda,ts, it is evident that thc prayer for appointrnent of an Advocate commissioner is primarily ainred at establishi,g possession indirectly o, r.he basis of a, unregistered sale deed. The appointment of an Advocate commissioner at the initial stage would amount. to a roving enquiry into possession and title, which is impe,,issible. The courts have repeatedly held that the Advocate commissioner cannot be appointed to collect evidence or to resolve disputed questions of title or possession, as per the judgment of the Hon'ble Apex Court in Ghan shyam Das Gupta and Another v. Anant Kumar Sinha and \ othersr and of the judgment of the High court of Bombay in K.K.verma and Anothcr v. Union of India and Anotherr. 'AIR l99l sc 2251 'AIR 19-54 Bombav 3 -ig Dr.GRR, J crp_3023 2019 12. The petition hled by the respondents - defendants would not disclose any \ 8 special circumstances that necessitate a local investigation. The issue of possession can be determined based on the available pleadings and documents. While the suit schedule property is located in Survey No.41l1, the trial court allowing the petition lor measuring thc entire land in Survey No.4l and ro fix the boundaries with the help of Mandal Surveyor is beyond the scope of the suit. As such, the impugned order passed by the leamed Principal Junior Civil Judge, Kodad is considered as erroneous, and the same is liable to be set aside

13. ln the result, the Civil Revision Petition is allowed setting aside the order passed by the learned Principal Junior Civil Judge, Kodad in I.A.No.289 of 2018 in I.A.No.196 of 2018 in O.S.No.87 of 2018, dated 21.08.2019. The trial courl is directed to dispose of I.A.No.196 of 2018 with the available evidence on record at the earlicst i.e. within a period of 30 days from the date of receipt ofa copy of this order. No order as to costs. As a sequel, miscellaneous applications pending in this petition, if any, shall stand closed. //TRUE COPY// Sd/. T. VIJAY KUMAR DEPUTY REGISTRAR SECTION OFFICER To, 1 2 J 4 N/ . The Principal Junior Civil Judge, at Kodad . One CC to Sri Mohammed lmran Khan, Advocate [OpUC] . One CC to Sri p.C. Aravinda Babu, Advocat.lOpU'Ct . Two CD Copies kam/gh HIGH COURT DATED:0910612025 ISEHT'r{ ,.\ c, f ; 25 rlJE 2E I x." l'i- ORDER CRP.No.3023 of 2019 ALLOWING THE CIVIL REVISION PETITION 1 $