The High Court · 2025

"'Respondents/Respondents/Defendants 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 to Stay all further proceedings in O.S.No.95l2O22 on the file of the Hon'ble Senior Civil Judge at Mulugu, pending disposal of the above Civil Revision Petition in the interest of Justice and equity and pass d Counsel for the Petitioner(s):SRl. !lyas Shareef Counsel for the Respondents: The Court made the following: ORDER IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CIVIL REVISION PETITION No. oF 2025 Date: 19.L2.2025 Betwer:n: Md.Kaleemul Hasan Jinkala Vima]a and three ,rthers ORDE;R: And Petitioner ..Respondents 'Ihe present Civil Revision Petition is filed by the petitioner/ plaintiff under Article 227 of the Constitution of India, aggrieved by the order, dated 24.LO.2O25, passed in I.A.No.97 of 2025 in O.S.No.95 of 2022 on the file of the Senior Civit Judge, Mulugu, wherr:in and whereunder the application filed under order xxvl Rule g .of C.P.C., seeking appointment of an Advocate- Comrnissioner to measure the plaint schedule property as well as. the adjoining property of respondent/defendant No.2, was dism.,ssed.

2. Brief facts of the case are that the plaintiff, who is the petitioner herei-n, filed o.S.No.9S of 2022 (old No.178 of 2018 on '.1 the file of the II Additional Senior civil Judge, warangal) seeking 2 EW, J Crp_4592 2025 permanent injunction against the respondents, their agents, servants, workmen and assignees from interfering or invading the suit land and along with the said suit, he also {iled I.A.No.275 of 2Ol8 seeking for grant of ad interim injunction. The learned II Additional Senior Civil Judge, Warangat, uide order, dated 2g.o3.2}18 in t.A.No.275 of 20L8, has granted ad inteim injunction directing the respondents/defendants not to interfere with the petition schedule property till filing of the counter and the said interim order is being extended from time to time. While things stood thus, taking advantage of the petitioner's absence, respondent No.2 herein has illegaliy occupied his land and constructed a house therein. Aggrieved thereby, the petitioner filed an application under Order XXXX Rule 2-A of C.P.C' against respondent No.2 for committing breach'of the injunction order- As respondent No.2 has constructed a house by occupying the petitioner's land., the petitioner/plaintiff filed an application seeking appointment of an Advocate-commissioner to nleasure the plaint schedule property as well as the adjoining property of .l respondent No.2. j \-* \ \ 3 EW, J Crp_459_tQt'

3. To thr: said petition, respondent Nos.l and 2 have filed a counter sta-ting that the disputed fact cannot be referred to commissiorrer and mea-suring the land is nothing but an attempt to create ttrird party evidence in favour of the petitioner. It is further stated that respondent No.2 had constructed the house after obtaining necessary permission and by suppressing a1l the material far:ts, the petitioner filed the aforesaid petition. The petitioner did not file any document to prove his ownership or possession of the alleged encroached area. Therefore, the appointment of advocate-commissioner is not necessary.

4. After r:onsidering the rival submissions made, the trial court has dismis:;ed the said I.A. challenging the sarne, the present Civil Revision Petition is filed.

5. Heard sri Rahul Gaikward, learned counsel representing Mr. Iiyas Shareef, learned counsel for the petitioner. perused the material plerced on record.

6. Learned counsel for the petitioner would submit that the trial court ,:rred in observing at paragraph No.11 of the impugned order that 'one cannot be granted injunction to protect his 4 EVV, J Crp_a592 2025 possession which he does not have". This finding amounts to a pre-trial of decree by deciding the final entitlement of the plaintiff at the interlocutory stage of appointing an Advocate commissioner and the learned trial Court has exceeded its jurisdiction' The purpose of the commission is mere identification of the physical features of the property and. not to adjudicate the final relief of injunction and therefore, prayed to allow this Civil Revision Petition 7 The trial court at para Nos.9 and 11 observed as under:- g. The petitioner submitted that during the pendency " of the suit and after temporary injunction, the respondent/defendant No.2 had encroached the above said part of suit land and therefore filed Order XXXIX Rule 2-A of c.P.c. petition. But the petitioner/plaintiff has failed to amend the plaint even though he is not in possession of entire suit schedule property as per his own contention.

11. If the respondents have encroached and occupied the part of the suit land then the very purpose of filing of the suit would be defeated because one cannot be granted injunction to protect his possession which he does -not have." I I \ \ a -/. 5 EW, J Crp_4592_2025

8. rrrom the above, it is crear that the rearned trial court has decided the entitlement of the petitioner in the I.A. It is setiled law th at, genera,y, the trial court does not have the power to decide the final relief of injunction in an apprication fired for appoirrtment of an Advocate_Commissioner. Therefore, this court deems it appropriate to set aside the impugned order, dated 24-10-2o2s passed in I.A.No .92 of 2o2s in o.S.No.95 of 2022 on the file: of the Senior civil Judge, Mulugu and remand the matter back to the triar court to examine the case of the petitioner in deta, .s we' as the defence taken by the respondents and to pass appropriate orders in I.A.No.g7 0f 2025 by conducting necessaly proceerlings.

9. Accordingly, this Civil Revision petition is allowed and remancled at the admission stage. There shall be no order as to costs. As a sequel, the misceraneous petitions pending, if any, shall stand closed. //TRUE COPYII a Sd/- P. PONNA KRTSHNA ASSISTANT REGISTRAR ,'(9 SECTION OFFICER 1' The senior civir Judge, at Murugu. (with records if any) 2. One CC to SRl. llyas Shareef, A--dvocat" fOpUCi 3. T'ro CD Copies Tg, INDL \(fr" ..r.*:__._. _.--.-.___-J - _ HIGH COURT DATED:1911212025 ORDER CRP.No.4592 of 2025 HEtt S TA ! 2 | JAil 2025 :; , o O * CIVIL RE\4SION PETITION IS ALLOWED a t? h lat