P. Sreeramulu v. P. Sreeramulu

(for short 'the Trial Court'), whereby the application, fi1ed by the petitioner under Order 26, Rule 9 of CPC for appointment of Advocate Commissioner to identifv the location of the suit schedule property and rvhether the house of the respondent/ defendant is located in the suit survey number or not, was dismissed.

2. Heard Sri J. Teja Varma, learned counsel for the revision petitionetnd Sri M.M.Ali, learned counsel lor the respondent. Perused the record. Facts of the case:

3. The brief facts of the case are that the petitioner/plaintiff filed the suit for declaration and recovery of possession of suit schedule propertv consisting of land in Sy.No.72/E to an extent of Ac.O.07 Gts., q,hich is I 1 ..i illega1l1' oc:cupied by the respondent/ defendant and a house is constructed. The respondent denied the survey number zrncl boundaries as shown by the petitioner to the plaint schedule. Therefore, petition is filed to appoint Advocate Commissioner to identify the surt schedule property and to ascertain whether the house of the defendant is located in suit schedule property or not.

4. The respondent pleaded that the land in Sy.No.72 admeasuring Ac.5.39 Gts. to which C. Narsamma, C Narayana, C. Ramulu and C. Lingam are the owners and the land of C. Narsamma and C. Narayana are on the northern side of suit survey number; Ramulu and Lingam have land on the southern side of suit survev number. After the death of C. Lingam, his widoq, by name Siddamma arrd son Dayakar have executed an Agreement of Sale dated 05.01.2006 and registered two Sale Deeds in favour of the respondent and he became owner of land in Sy.No.72 to an extent Ac.O.O9 Gts. The responclt:nt had constructed a irouse and sheds in his land. ThereaJter, the petitioner got executed Rectification Deeds and on said basis, filed a firlse case against the respondent. Further, J the case of the respondent is that there are no sub-division numbers as there is no supplementary sethwar existing to shou, the sub-division of the property. Lastl1., the respondent contended that the petitioner is not aware of the location of his property, seeks to collect evidence through Court and therefore, opposed the petition.

5. Having examined the rival contentions, the Trial Court had dismissed the petition on the ground that the burden lies on the petitioner to prove his case with respect to existence of property within specified boundaries ar-r d he cannot rely on the weakness on the case of respondent, nor can he collect any evidence from the court. Grounds of Revision:

6. In grounds of revision, it is pleaded that the petitioner is claiming his property to be situated in Sy.No.72/E to an extent of Ac.1.20 Gts. and in the same property, the respondent has occupied to an extent of Ac.0.O7 Gts., but denied the same in his cross examination and therefore, it is necessary to appoint an Advocate Commissioner to identify the location of house of the respondent in the suit schedule property. The case of the I I respondent is that he purchased lald to zrn extent of Ac.O.O9 Gts. in Sy.No.72 wherein, he construc ted a house and two sheds. Both the parties are claiming the same land in the same survey number. Therefore, unless an Advocate Commissic'ner is appointed, said issue cannot be resolved.

7. In tlrat context, the learned counsel for revision petitioner relied upon the judgment of the Honble Supreme Court ol Inclja in Subhaga and others v. Shobha and othersr, u,l- ert'in it is held as follo$,s: "6. ...- Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identilied that property with reference to such boundaries. Even if there was any discrepancy, normall,y, the boundaries should prevail. There w:rs no occasion to spin a theory that it was necessaqr in this suit to sun,ey all the adjacent lands to find out rvhether an encroachment was made in the land belonging to the plaintiff. "

8. Further, reliance is placed on the judgmr:rrt of this Cortrt in case betu,een P. Sreedevi v. IVLN Venkata Lakshmi Narsimha Prasadz, wherein, it is held as follows: ' (:oorr)s scc 460 r 2olo (6) Al.D 99 (l's) )B ) ) '39. In Badana Mutyalu and Ors. vs. Palli Appalara.;u {2013 (5) ALD 376}, this Court has held that in siruarions where there is controversy as to identification, localion or measurement of the land, local investigaLion should be done by appointment of an Advocate Commissioner.

40. This was reiterated in Jajula Koteshwar Rao vs. Ravulapalli Masthan Rao {2015 (6) ALD 483}, that the object of the local investigation under Order XXVI Rule 9 CPC is to collect evidence at the instance o[ the party who relies on the same and which evidence cannot be taken in Court but can be taken only from the peculiar nature, on the spot. This Court held that the Commissioner in effect is a projection of the Courl appointed for a particular purpose; ald where there is an allegation of encroachment by one party which is denicd by the other, ora-[ evidence cannot come to an aid of a party and alt Advocate Commissioner may be appointed to ascertain this fact; and that.

41. Thus when there is a dispute of loca.lization or demarcation of property, the best course of action is to appoint an Advocate- Commissiorier / Surveyor for localization."

9. Further, reliance is placed on the judgment of the Honble Supreme Court of India in Haryana Waqf Board v. Shanti Sarup and others3, wherein, it is held that u'hen the involves demarcation of the disputed land, it is appropriate for the court to direct the investigation by ' t00li (8 ) S(.(- 67 I \ - *r1 -t - \''..1 6 appointillg a Local Commissioner under Order 26 Rule 9 of the CPC. The learned counsel for the revision petitioner pleaded that the facts of the present case are similar to that cf the case in Haryana Waqf Board (3 supraf and that there is no restriction on appointment of Advocate Commissioner vvhen the survey number. is same and sub- division numbers are different. It is held that when there is a dispute of property with different sub-clivision numbers in the same survey number, it is necessary to appoint a surveyor and the plaint schedule be loca-lized.

10. It is pleaded that the first petition filed for appoinlment of art Advocate Commissioner to note down physical features of suit schedule property vr,ith the help of Mandal Surveyor '"vas dismissed on the ground that the respondent has admitted existence of his house in the suit schedule property and '*.hen there is al admitted fact, there is no need for appointment of an Advocate Commissioner. Another ground taken is that the owners of land in survev number are not added as parties to the suit and in the absence of owners, the propert-y in Sy.No.72 carlnot br,' surveyed. Lastly, it is pleaded that on one hand, I I I I I I I l the respondent is claiming that he is owner of land in Sy.No.72 and has in u,ritten statement claiming his house to be situated in Sy.No.52 while denying existence of house in S1'.No.72. Therefore, there is a need to ascertain u,hether the property of respondent falls in Sy.No.72 or 52 as contended by the parties. Therefore, it is prayed that the petition be allowed setting aside the impugned order. Contentions of the petitioner:

11. The learned counsel for the petitioner argued that arr Advocate Commissioner can be appointed for localization of a disputed property. In the instant case, the petitioner is claiming land in Sy.No.72/E, based on registered sale deeds, to an extent of Ac.1.2O Gts. The respondent has illegally occupied Ac.O.07 Gts. of land which belongs to the petitioner but has denied the same in his written statement and oral evidence. It is the case of the petitioner that the land of the respondent 15 ln Sy.No.52 but he has constructed house in Sy.No.72 and therefore, there is a need for appointment of an Advocate Commissioner. In support of his case, reliance is placed on decisions in Subhaga (1 supraf, P. Sreedevi (2 supraf and Haryana \. ,--1 - i 8 Waqf Board (3 supra). On the basis of tht: seLid decisions, the learned counsel for the petitioner arg,red that an Advocate Commissioner can be appointed for localization of the disputecl property. Contentions of the respondent:

12. The learned counsel for the respondent argued that this is a second petition filed u.ith the same relief i.e. for appointment of an Advocate Commissioner to identify the location of suit schedule property as to whether the house of respondent is located in suit survey number or not. The earlier petition filed vide I.A.No.5O6 of 2023 has been dismissed as both the parties are claiming their propert5r in the same survey number i.e. Sy.No.72 and there is no division of Sy.No.72 into sub-division numbers by implementation of supplementary sethwar. Since there is no supplementa5r sethwar to show sub-division numbers, it is arguecl that the location of the suit schedule property in Sy.No.72/E or the location of the respondent's property in Sy.No.72/A is not possible. It is argued that the petitioner herein had purchased the land in the year 2006 with a dilferent survey number, got the sun/ey number /' ./ - 9 rectified in the year 2006 vide document No.17O6 of 2006, dated 23.04.2OO6 and thereafter, got the boundaries rectified in the year 2OI4 vtde document No.20OO of 2074, dated O 1.08.2014 and thereafter, frled the suit claiming the respondent's property, AS such, the petitioner is not entitled to seek appointment of Advocate Commissioner.

13. The learned counsel for the respondent relied upon judgment of this Court in Sarala Jain v. Sangu Gangadhara, u,herein, reference is made to judgments in case of Sagi Vijaya Ramachandar Raju and others Koppisetti Sat5ranarayana and others, Batchu Narayana Rao v. Batchu Venkata Narasimha Rao, Koduru Sesha Reddy Gottigundaia Venkata Rami Reddy and others and Yenugonda Bal Reddy v. Manemma, wherein, it is consister-rtl1, held that appointment of arr Advocate Commissioner in a suit for declaration of title ald permanent injunction or in a suit for injunction simplicitor to note down physical leatures amounts to collection of evidence. Referring to judgment of Haryana Waqf Board (3 supral, it is argued that Commissioner can be appointed r l0l6 (l) At. 1 t.l2 l0 .l for localization of property when there is a dispute or issue with regard to the identity of property on location, whereas, in the instiu-rt case, there is no dispute tl'rat both the petitioner as well as the respondent are claiming their land to be located in Sy.No.72 and since there is no sub-division of the land in Sy.No.72 and the alleged sub-division numbers are self-created sub-division numbers by the owners of respective property, the same cann{)t be taken into consideration. Findings of the Court:

14. Perusal of the record shows that the petitioner IS claiming his land to be located in Sy.No.72 / E and the respondent has occupied land to an extent of Ac.O.07 Gts. in the sarne survey number. As per petitioner's o\\'n version, he purchased the agricultural land bearing Sy.No.7O/A admeasuring Ac.1.OO Gts., S1'.No.53/E admeasuring Ac.0.164 Gts., Sy.No.72/E adrneasuring Ac. 1.20 Gts., Sy.No.53/EE admeasuring Ac.O. l64 Gts., Sy.No.72/EE admeasuring Ac.1.19 Gts., situated ar Mirzapally \/iilage, under registered sale deed with its boundaries vide registered document No.1464 of 2006, I I l1 dated 12.04.2006 at Sub-Registrar, Ramayampet from its original owners. One of the above survey numbers, i.e., Sy.No,7O/A wrongly incorporated in the registered sale deed No. 1464 of 2006, dated 12.04.2006, as such, the said Sy.No.70/A deleted by way of rectification deed vide registered document No.1706 of 2006, dated 28.O4.2006 at Sub-Registrar, Ramayampet. The boundaries in the registered sale deed No. 1464 of 2006, each survey number are wrongly shown, as such, the boundaries are rectified under Rectification registered deed vide document No.20O0 of 2014, dated 01.08.2014 registered at Sub-Registrar, Andole at Jogipet.

15. While so, the case of respondent is that he purchased land in Sy.No.72 which does not contain any sub-division numbers. The land in Sy.No.72 is owned by several people i.e. C. Narsamma, C. Narayala, C. Ramulu and C. Lingam.

16. There is no dispute that both the petitioner and respondent are claiming the same property within the same survey number, except that, the petitioner is claiming existence of sub-division numbers and the same is denied I2 I by the respondent. In this regard, the judgnrents relied upon by the petitioner in Subhaga (1 supral, P. Sreedevi (2 supra| and Haryana trIaqf Board (3 supra) r'an come to his aid in case there is dispute about the idr:ntity of the property. In the instant case, there is no dispute about the identity of the property as well as the suit survey number Both the petitioner and respondent are cliriming the disputed property to be their proper{r and are also claiming that the said land is in suit survey rrumber i.e Sy.No.72. The contention of the petitioner that the respondent purchased land in Sy.No.52 br.rt wrongly claiming the land in Sy.No.72 does not stand scrutin-y when the oontents of the written statement are perused. The respondent in his written statement nou,hr're claimed that he purchased the land in Sy.No.52. Therefore, said (-'ontention of the petitioner is not tenable. 17 . When there is no dispute about the sun,cv number, the only ground on which localization can be ordered in case there are sub-division numbers with supplementary sethwar. In the instant case, both the parties agree that thertr 15 nO supplementary sethwar and no division of l3 Sy.No.72 with sub-division numbers. Therefore, on this count too, there cal be no dispute with respect to identity of the property or its identification on ground with reference to the claims of the petitioner and respondent.

18. The dispute as canvassed by the petitioner appears to be identity of the property on ground with respect to boundaries as shown in the respective sale deeds of the petitioner and respondent. In the instant case, the petitioner herein having purchased the land under a registered sale deed in the year 2006, rectified the Sy.No.7O/A to Sy.No.72 in the year 2OO6 and after a gap of eight years in the year 2014, prior to {iling of the suit, got changed the boundaries of the land in the suit survey number by way of another Rectification deed. Only after changing the boundaries through a Rectification deed, the petitioner is claiming location of the respondent's property in his land. This fact situation is different from a simple case of dispute with respect to identity of property sans with no dispute with respect to boundaries. In the instant case, the boundaries as cited by the petitioner through Rectification deed of the year 2Ol4 are disputed by the ,--l -r-\ l4 I.i respondent. Such being the case, the burden is on the petitioner to prove his case about the sar-rctity of the boundaries and location of the respondent property r.l,ithin the boundaries of his property.

19. Lastly, coming to the earlier petition vide I.A.No.5O6 of 2023 filed by the petitioner with a pr"y"i to note down the physicai features, the same was dismissed by the Trial Court vide order dated 27.O7.2023. The petitioner ought to have cha-llenged the said order but did not do so. Instead, came up with the current petition under revision i.e. I.A.No.840 of 2024 by slightly changing the prayer from noting dorx'n the physical features to identify the location of suit schedule property to location ol house of respondent in suit survel' number. The fact borne by record is that both the petitioner as well as the respondent are claiming the location of house of respondent in Sy.No.72. Therefore, in the absence of sub-division numbers and rvith dispute regarding the boundaries as per original Sale deed and Rectification deed, this Court does not see any reason to set aside the order passed by the Trial Court. In view of the 4 I I l-t foregoing discussion, there are no merits in the revision petition and the same is liable to be dismissed

20. In the result, the Civil Revision Petition is dismissed confirming the order, dated 19.09.2024, in I.A.No.84O of 2024 (wrongly typed as I.A.No.S4O of 20221 in O.S.No.78 of 2014, on the file of the Court of the learned Principal Junior Civil Judge, Medak. No costs. As a sequel, the miscellaneous petitions, if any, pending in this Civil Revision Petition sha1l stand closed. SD/. K.BHAVANI SWAMY ASSISTANT REGISTRAR 6 //TRUE COPY// SECTION OFFICER l To,

1. The Principal Junior Civil Judge-cum-Judicial First Class Magistrate, Medak 2. One CC to Sri J Teja Varma, Advocate TOPUCI 3. One CC to Sri M M Ali, Advocate [OPUC] 4. Two CD Copies W ABK,/PSL h1 SIAI,-t JA ?iN0I16 'i:\ 'zl *. .J a..'.f ,r. 'v o O '\i?. \tr HIGH COURT DATED: 29lOBl2X25 ORDER CRP.No.3665 of ',102i4 I I I DISMISSING THE CRP \ 10 ?r \\