The High Court · 2025

Counsel for the Petitioner: SRI JAGAN MOHAN PERUMANDLA \ Counsel for the Respondent: MANDHATA SLK SRUTHA KEERTHI The Court made the following: ORDER THE HON'BLE SMT. JUSTICE TTRT'MALA DI'VI EADA CTVIL REVISION PETITION NO.4 75 0F:2025 ORDER: .Constitution This Civil Revision petition is filed under Article 222 of the of India, aggrieved by the order dated. 02.O9.2024 in I.A.No.168 of 2024 in O.S.No. 1746 of 2022 by the principal Junior Civil Judge - cum - Judicial Magistrate ol First Class, Jayashankar, Bhupalpally (hereinafter referred kr as ,,the trial Court")

2. The revision petitioner herein is the rcspc ndent/plaintiff and respondent is the petitioner/ defendant before .he trial Court. F'or convenience and clarity, the parties herein arr referred to as they were arrayed before the trial Court.

3. The case of the petitioner belore the trial C ;urt is that he has filed a petition under order XXVI Rule 9 o| thr: code of civil Procedure praying the court to appoint an advocat. commissioner to determine the survey number of the land (suit schedule property) which is in the possession and enjr,yment of the respondent with the assistance of Assistant Direr:tor for Survey and Land Records, Warangal and with the help of tippon and village map of Buddaram. The suit was hled aqainst him for permanent injunction in respect of Ac.02- 1g gu ttas in survey 2 CRP No.475 2025 No.73a /A/3, situated at Buddaram Village, Ghanpur Revenue Mandal. The respondent claimed to have purchased the suit land in survey No.73a I A I 3 from its erstwhile owner and obtained temporary injunction against him and on the basis of the said injunction order, the respondent has entered into possession of the land comprised in Sy.No.703 of Buddaram. It is the case of the petitioner that survey Nos.734 and 703 fall adjacent to each other and that survey No.7O3 measures Ac.1l-18 guntas and that his late father's name is recorded as owner in the revenue records while the respondent asserts that she has been in possession of the suit land comprising Sy.No.734 on the spot and the contention of the petitioner is that the respondent is in possession of land comprising in survey No.7O3 and thus, it has to be decided by a surveyor of the District Survey and Land Records by conducting survey on the suit land with the assistance of tippons and village map and submit a report to the Hon'ble Court. It is his case that the oral or documentary evidence cannot determine the dispute except by surveying the suit land.

4. The respondent/ plaintiff firied counter and contended that the petition is neither maintainable in law or on facts and that the petilioner has filed the petition just to delay the proceedings and that there is a direction from the Hon'ble High Court of Telangana t 3 CRP No.475 2025 to dispose the suit within six months. It is his contention that the petitioner intentionaliy hled the above petition just to knock away the property. That in a suit for injunction the Hon ble Court has to look into the possession over the suit schedule tr)ropcrty as on the date of filing of the suit and a commissioner cannot be appointed to gather evidence in such cases. He further relied upon 2015 (2) ALT 484 contending that in a suit for injunction an advocate commissioner cannot be appointed at th,: threshold to gather evidence. It is further contended by hcr that she purchased the suit schedule property 17 years ago from the erstwhile owner lawfully and has been in continuous possession till date and also that the petition suffers from ratches as it is fired with a delay, that the suit is filed in the year 20lg but the perition is filed in the year 2024 w].id' itself shows the evil i-rtention of the petitioner to delay the Court proceedings. Therefcre, prayed to dismiss the petition.

5. Based on the above contentions, the trial Corrrt has framed the following points for consideration: "Whether the petitioner/ defendant is entitl:d for the relief as prayed for?,, 4 CRP No.475 2025

6. On hearing both sides, the trial Court has allowed the petition appointing an advocate commissioner to locate the suit schedule property ald the alleged survey No.7O3 with the help of Surveyor of the District Survey and Land Records with the assistance of tippons and village map and hled his report with pian. Aggrieved by the said order, the present revision petition is filed.

7. Heard the submission of Sri Jagan Mohan Perumandla, learned counsel for the revision petitioner and Sri Srutha K Mandhata, learned counsel for the respondent

8. The learned counsel for revision petitioner submitted that the impugned order is perverse, irregular and liable to be set aside. He argued that the trial Court ought to have proceeded with the trial but instead it has allowed the petition which would further protract the litigation. He further argued that in an injunction suit the aspect of possession has to be looked into and the trial court can arrive at a conclusion based on the evidence adduced by the parties, but instead the trial court has appointed a commissioner to ascertain the possession of the parties over the suit sche$le property, which is not proper in the eye of law. He further argued that in O.S.No.1S of 2Ol8 the suit schedule property pertains to survey No.734 / A/ 3 wherein the trial court t 5 CRP No.475 2025 has granted temporary injunction and against the said orders, the defendant has filed an appeal in CMA No.60 of 20 L8 before the VIII Additional District Court, Bhupalapally and the same was dismissed by order dated L7.O3.2022 against which CRP No.1946 o;f 2022 was fited before this Court and that th s Court was pleased to dispose of the same by order dated 16.09.2022 and directed thc trial Court to dispose of the suit within 't period of six months. It is the contention of the counsel that the dispute in the present suit is with regard to suwey Nos.734 and 7O3 and that instead of cooperating with the Court to complete t.re trial within six months, the defendant is playing delay tactics by hling one petition or the order and the impugned order is a re sult of such a petition. He therefore, prayed to allow the petition and set aside the impugned order dated 02.O9.2024.

9. The respondent counsel, on tl.e other hand, has submitted that the entire dispute revolves around only a single point that the plaintiff in the suit who is the petitioner herein claims possession in survey No.734 but she is in the actual possession of survey No.703. The respondent's contention is that the petitioner is under the apprehension that the land in her pc,ssession is in Sy.No.734/A and that the entire discrepancy is with regard to the survey number pertaining to the land rhat is in oc:upation of the 6 CRP No.475 2025 revision petitioner herein. While, she assumes it to be survey No.734/A, the respondent herein assumes it to be survey No.703. Since both the lands are adjacent to each other, the fact has to be ascertained by local survey to be conducted by the official surveyor with the help of tippons and village maps and therefore, to put an end to the Iitigation the present petition has been filed by them before the trial Court and that the trial Court has rightly allowed the petition appointing an advocate commissioner to determine the survey number of the land in which the petitioner- plaintiff claims to be in possession. She therefore, prayed to uphold the orders of the trial Court by dismissing this revision petition.

10. Based on the above contentions, this Court frames the following points for consideration: 1) Whether the order of the trial Court dated 02.O9.2024 in I.A.No. 168 of 2024 in O.S.No.1 146 of 2022 is sustainable in law and under the facts? 2) To what relief)

11. POINT NO.1: a) A perusal of the record reveals that suit in O.S.No.1146 of 2022 ts filed by Arshinapalli Rajitha claiming to have purchased the suit schedule properties in survey No.73a I A/3 seeking 7 CRP No.475 2025 injunction and that in the pending suit a temporary injunction was granted in her favour and the triai is being pro:eeded in the marn suit b) The contcntion of the plaintiff before the trial Court in suit is that she is in possession o[ survey No.734 lAl3. .].he contention of the respondent is that the land in which the plainriff is claiming possession falls actually in survey No.703 but r ot in survey No.734. Further, in support of her contention they have also filed Iocation sketch under Ex.p7 and it shows that the s urvey No.703 and 734 are located adjacent to each other. Thus, the parties are not sure about the exact location of the suit sche<lule property. The plaintiff cl:rims that to be in survey No.T34 lA while the defendant claims that the plaintiff is in possession of Sy.No.703. In such a case, it would be proper to appoint an advocate commrssloner c) Order 26 Rule 9 of CpC is extracted hereundrr for the sake of reference: "9. Commissions to make local investigations _ In any suit in which the Court deems a local investigition to be ."q.,i"it. o. proper for the purpose of elucidating any matter in dist ute, or of ascertaining the market-value of any property, or the a mount of any mesne profr.ts or damages or annual net profits, the Court may lssue a commission to such person as it thinks fit directing him to make such investigation and to report the.e,,,., to the Cou rt: Provided that, \r,here the State Government has made rllles as to the persons to whom such commission shall be isr;ued, the Court shall be bound by such rules...." 8 CRP No.475 2025 d) Thus, as per the said provision a Court can order for local investigation when it is required for elucidating any matter in dispute. Since, the present suit revolves around a dispute with regard to the localization of the suit schedule property, the trial Court has rightly granted the said relief of appointing advocate commissioner to determine the survey number of the suit schedule property by conducting a survey with the help of official surveyor. e) The respondent counsel herein has further relied upon a decision of this High Court rendered in Tangella Ranga Reddg a. Koppula Sriniuas Reddgr, wherein it was held that when there is a dispute regarding boundaries and extents of the properties and the survey numbers in which they were located, the facts have to be physically verified and measuring of the land on the spot by a Surveyor would become necessary. When a party has right to make use of the provision of law for proper adjudication of the matter in controversy, he is to be permitted to avail that provision, otherwise the same would become redundant. By observing so, this Court has dismissed the CRp upholding the order of the trial Court by which an advocate commissioner was | 2023 (6) ALD 637 (TS) 7 9 CRP No.475 2025 appointed to note down the physical features of thr suit land and their boundaries with the help of Mandal Surveyor. f) The powers of this Court under Section 115 cf the CpC are limited to the extent of looking into the existence of legai infirmity, if any, in the impugned orders. g) Section 115 of the CPC is extracted hereunder for the sake of reference

115. Revisioa.-( l) The High Court may call for t re record of any case rvhich has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to havc acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks frt; Provided that the High Court shall not, under this ;ection, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where tlre order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings. (2) The High Court shatl not, under this section, vary or reverse any decree or order against which an appeal lies :ither to the High Court or to any Court subordinate thJreto. (3) A revrsion shall not operate as a stay of suit or other proceecling before the Court except where such suit or other proceeding is stayed by the High Court. Explanation.-ln this section, the expression "any case which has been decicled" includes any order made, or any ordei- deciding an issue in the course of a suit or other proceeding. h) If at all the trial Court has exercised jurisdi,;tion not vested in it by law or i[ it has failed to exercise jurisdictiorr or it has acted in the exercise of jurisdiction illegally, only then the High Court 10 CRP No.475 202s shall interfere with the trial Court proceedings. In the present case, it cannot be said that the trial Court has exercised jurisdiction which is not vested in it or has aiso not acted illegally or with any material irregularity. i) In Haryana Waqf Board. u. Shanti Sarla,p and. other9, the Hon''ble Supreme Court has held as follows: "ln this case, an application was frled under Order 26 Rule 9 of the CPC which was rejected by the trial Court, in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a l,ocal Commissioner under Order 26 Rule 9 CPC". j) Thus, in view of the legal position under Order 26 Rule 9 read with Section 75 of CPC and in view of the law laid down in the above cited decision, it is held that the trial Court has not committed any error by appointing the advocate commissioner to locate the suit schedule property with the help of surveyor of District Survey and land records and with the assistance of tippons and village map and other authenticated revenue records. Since the trial Court has acted in a proper prospective and has acted within its jurisdiction in passing the impugned order, it is held that the order of the trial Court in I.A.No.168 of 2024 in O.S.No. 1 146 of 2022 is sustainable in law and under the facts. Point No.1 is answered accordingly. ,2008 SCC OnLine SC 1084 11 CRP No.475 2025

12. POINT No.2: In view of the finding arrived at point No. 1, the civil Revision petition is dismissed upholding the order dated 02.O9.2024 in I.A.No. 168 of 2024 in O.S.No.l 146 cf 2022 by the Principal Junior Civil Judge _ cum _ Judicial Magistrate of First class, Jayashankar, Bhuparpally There shal be rro order as to Miscellaneous applications, pending if any. shall stand closed. //TRUE COPY// SD/- N. SRIHARI EI'UTY REGISTRAR :iECTION OFFICER To, '1 . Principal Junior Civil J udge-cum-Judicial Magistrate of F rst Class, Jayashankar Bhupalpally

2. One CC to SRI JAGAN TUOHAN PERUMANDLA Advocate tOpUCl 3. One CC to SRl. MANDHATA SLK SRUTHA KEERTHT Adrocate [OPUC] 4. Two CD Copies SS/gh $ ( c' o (J ---.= i i.'E li Ia; 6 Tl JUL M .z I t DFSr qlgr'r(- t o HIGH COURT DATED:1010612025 ORDER CRP.No.475 of 2025 DISMISSING THE C.R.P. WITHOUT COSTS @C"Pft3 h.tr