Telangana High Court
Sarpalli Raju vs Korra Radhakrishna Yadav on 5 February, 2025
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITON No.1542 of 2024
ORDER:
Heard Sri J.Ashvini Kumar, learned counsel for the revision
petitioners, and Sri C.Kumar, learned counsel for the respondents.
Perused the entire material available on record.
2. This Revision Petition is filed challenging the order, dated
18.04.2024, passed by the Additional Junior Civil Judge,
Hayathnagar in I.A.No.137 of 2020 in O.S.No.198 of 2020,
whereunder the application filed under Order XXVI Rule 9 of the
CPC filed by the defendants was allowed.
3. The revision petitioners are the plaintiffs and the respondents
are the defendants in the suit.
4. For convenience, hereinafter the parties will be referred to as
they are arrayed in the suit.
5. The brief factual matrix of the case is that the plaintiffs filed
suit-O.S.No.198 of 2020 for perpetual injunction against the
defendants in respect of land admeasuring Ac.0.32 guntas in
Sy.No.10/92 and Ac.0.07 in Sy.No.10/97, total admeasuring
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CRP.No.1542 of 2024
Ac.0.39 guntas in Batasingaram Village, Abdullapurmet Mandal,
Ranga Reddy District.
6. In the plaint, the plaintiffs averred that originally the suit
schedule land was assigned by the then Government in favour of
their father-Sarpalli Narsimha in the year 1964; that raithu pass
book was also issued in their father’s name by the Tahsildar,
Abdullapurmet; that after the death of their father, on their
application, their names were entered in the revenue records; that
they are in possession and enjoyment of the said land; that they
have also obtained crop loan on the suit schedule land; and that the
defendants without any manner of right or title over the suit
schedule land are interfering with their possession and therefore,
the suit for perpetual injunction is filed.
7. The defendants entered appearance and filed their written
statement denying the averments made in the plaint and contended
that the same are false and baseless. They averred that they
purchased the land admeasuring Ac.1.34 guntas in
Sy.No.10/22/AA of Batasingaram Village under registered sale
deed bearing document No.13935/2019, dated 30.10.2019 from
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CRP.No.1542 of 2024
their vendor-Sandeep Jain and the said Sandeep Jain purchased the
land under sale deed bearing document No.4987/2006, dated
02.03.2006; that the name of Sandeep Jain was mutated in the
revenue records; and that while mutating the name of Sandeep Jain,
the Tahsildar, Abdullapurmet has assigned sub-division number to
the said land as Sy.No.10/22/AA. The defendants further averred
that subsequently, pattadar passbook was also issued to the
defendants; that the plaintiffs are no way concerned with the said
land belonging to the defendants and the suit is filed on false and
baseless allegations and prayed to dismiss the suit.
8. While the said suit was pending for adjudication, the
defendants filed I.A.No.137 of 2020 for appointment of Advocate-
Commissioner to measure the suit schedule land with the assistance
of the Assistant Director, Survey and Land Records, Ranga Reddy
District, contending that they filed O.S.No.281 of 2020 before the
same Court and ad-interim injunction was also granted in their
favour; that the plaintiffs are claiming their land in Sy.Nos.10/92
and 10/97, whereas the lands being claimed by the defendants are
in Sy.No.10/22/AA of the same Village, i.e., Batasingaram Village;
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CRP.No.1542 of 2024
that the defendants approached the Tahsildar, Abdullapurmet
Mandal, for survey of land and paid requisite fee, however, in view
of issuance of notice by the plaintiffs’ counsel to the Tahsildar,
survey could not be conducted; and they finally averred that
appointment of Commissioner for measuring the suit schedule land
with the help of Assistant Director, Survey and Land Records, is
necessary for proper adjudication of the matter since both the lands
are situated in the same Village and also to put a quietus to the
dispute.
9. Opposing the said application, the plaintiffs filed counter and
averred that as the trial of the suit is not yet commenced,
appointment of Commissioner for measuring the suit schedule land
amounts to collection of evidence, which is impermissible under
law and finally contended that no grounds are made out by the
defendants for appointment of Commissioner. The plaintiffs,
however, admitted that the defendants filed O.S.No.281 of 2020 for
perpetual injunction and the same is pending before the same
Court. It was specifically averred that the defendants are never in
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CRP.No.1542 of 2024
possession of the suit schedule land in O.S.No.281 of 2020 and
prayed to dismiss the application.
10. The trial Court, based on the aforesaid pleadings of both the
parties, and also the grounds urged by the defendants for
appointment of Commissioner, has allowed the application, vide
order dated 18.04.2024 by relying upon the judgment of this Court
in Tangella Ranga Reddy Vs. Koppula Srinivas Reddy 1, with an
observation that when disputes arise regarding boundaries, extents
and survey numbers, physical verification and on-site measurement
by a Surveyor are deemed necessary. The trial Court also observed
that appointment of Commissioner is not intended to determine
possession of the disputed property. Challenging the said order, the
present Civil Revision Petition is filed by the plaintiffs.
11. Learned counsel for the revision petitioners/plaintiffs
contended that the application filed by the defendants for
appointment of Commissioner in a suit filed by the plaintiffs for
perpetual injunction per se is not impermissible and contrary to
law; and that as the suit is filed by the plaintiffs seeking perpetual
1
2023(6) ALD 637
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CRP.No.1542 of 2024
injunction, the burden is on them to prove the case. He further
contended that measuring the suit schedule land and fixing the
boundaries amounts to collection of evidence, which is
impermissible under law. He further contended that as a counter-
blast to the present suit, the defendants filed O.S.No.281 of 2020
for perpetual injunction and as such they cannot file and maintain
an application for appointment of Commissioner for measurement
of the suit schedule land in the suit filed by the plaintiffs. Learned
counsel finally contended that viewed from any angle, the
impugned order is erroneous and unsustainable and the same is
liable to be dismissed.
12. Per contra, learned counsel for the respondents/defendants
contended that the latest position of law is that Commissioner can
be appointed even in the suit filed for perpetual injunction and that
there is no bar under law for filing such an application by the
defendants even in a suit filed by the plaintiffs for perpetual
injunction; that the land claimed by the plaintiffs is in Sy.No.10/92
and 10/97, whereas the land claimed by the defendants is in
Sy.No.10/22/AA of the same Village, i.e., Batasingaram Village,
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CRP.No.1542 of 2024
therefore, it is proper and necessary to appoint Advocate-
Commissioner to measure and demarcate the lands being claimed
by the respective parties and also to verify the ground reality,
which shall only aid the trial Court in proper adjudication of the
suit and prayed to dismiss the present Revision Petition.
13. In support of his submissions, learned counsel for the
respondents/plaintiffs relied upon the following judgments:-
(i) Mohd. Taher Quershi and another Vs. Syed Abdul Saleem
Pasha2
(iii) V.A.Innova Alloy Steel Tech Pvt Ltd, Hyderabad Vs.
Avinash Daga4
(vi) M.Yadaiah and another Vs. M.Chilkamma and others7
2
2020(5) ALD 551 (TS)
3
2021(2) ALD 687 (TS)
4
2021(1)ALD 92 (TS)
5
(2008) 8 SCC 671
6
2020(6) ALD 99 (TS)(DB)
7 2022(2) ALD 299(TS)
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CRP.No.1542 of 2024
(vii) Yedamakanti Laxma Reddy Vs. Nizam Sugars Limited
(NSL) and another8
14. This Court has bestowed its attention to the submissions
advanced by learned counsel for both the parties and thoroughly
perused the aforesaid judgments relied upon by the Learned
counsel for the respondents/plaintiffs.
15. A perusal of record would disclose that the plaintiffs are
claiming the land in Sy.No.10/22/AA, whereas the defendants are
claiming their land in Sy.Nos.10/92 and 10/97, however, both the
lands are situated in the same Village, i.e., Batasingaram Village,
Abdullapurmet Mandal, Ranga Reddy District. The claim of title of
the plaintiffs is based on purported assignment made in favour of
their father in the year 1964 and subsequent issuance of pattadar
passbook and title deeds in their favour by the Tahsildar,
Abdullapurmet Mandal, whereas the claim of title of the
defendants is based on registered sale deed, dated 30.10.2019. It is
the specific case of the defendants at the time of mutation of name
of their vendor-Sandeep Jain in the revenue records, the Tahsildar,
8
2023(4) ALD 348 (TS)
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CRP.No.1542 of 2024
Abdullapurmet Mandal, has assigned sub-division number as
Sy.No.10/22/AA. The defendants contended that that they filed
application for survey of land since there is dispute with regard to
location and that the plaintiffs are claiming non-existent land,
however, the Tahsildar despite paying requisite fee could not
survey the land in view of objection raised by the plaintiffs.
16. It is settled principle of law that when there is a dispute with
regard to location and identity of the land, it is always advisable
and appropriate to appoint Commissioner to survey the land with
the help of Assistant Director, Survey and Land Records, to
identify the location of the disputed land by ascertaining the survey
number in which it is situated, which aids or assists the Court for
proper adjudication of the matter.
17. It is apposite to refer to judgment of the Hon’ble Supreme
Court in Haryana Waqf Board‘s case (cited supra), wherein it is
held that it is appropriate for the Court to direct investigation by
appointing a local Commissioner under Order XXVI Rule 9 CPC
for demarcation of land.
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18. A Division Bench of this Court in P.Sreedevi‘s case (cited
supra), at para -37 of the judgment held as under:-
“When the appellants are claiming land in Sy.No.85/1, a
separate sub-division of Survey No.85, and the
respondents are claiming land in Sy.No.85/2, a different
sub-division in the same survey number, it was incumbent
on the part of the Court below to first appoint a Surveyor
in I.A.No.620 of 2017 and get first Sy.No.85/1 and
Sy.No.85/2 on the ground and the plaint schedule land
localized as was sought by the appellants.”
19. In M.Yadaiah’s case (cited supra), a learned single Judge of
this Court held that appointment of Advocate-Commissioner to
note down the physical features does not amount to facilitating the
party to collect evidence. The Court has got ample power to
discuss and determine the extent to which the Commissioner’s
report can be taken up into consideration for coming to a just
conclusion with regard to the merits of the case.
19.1. It was further observed as hereunder:-
“Noting down the physical features that exists at the
disputed property themselves does not change the
circumstances present therein and the Advocate-
Commissioner’s report would always aid the Court in
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CRP.No.1542 of 2024coming at a just conclusion with regard to the presence of
a situation that exists at the disputed property. Admittedly,
nothing present therein can be changed either through
physical verification of the Advocate-Commissioner or by
his report. The point that has to be observed here is that
any Advocate-Commissioner appointed by any Court of
law would execute warrant issued for noting down the
physical features of the disputed property, only after
issuance of notice to both the parties fixing the date and
time of inspection. The Advocate-Commissioner would
inspect the disputed property at all times in the presence
of the parties to the suit or their authorized
representatives including their counsel except in cases,
where such parties themselves restrain from making their
presence in spite of issuance of notice. Also, law provides
and enables the parties to the proceedings to file
objections to the Commissioner’s report after it is
presented to the Court of law on execution of warrant.
Such being the case, it cannot be held that only for the
purpose of collection of evidence, the petitioners have
moved application for appointment of Advocate-
Commissioner.”
20. In V.A.Innova Alloy Steel Tech. Pvt. Ltd., Hyderabad‘s case
(cited supra), a learned single Judge of this Court held that there is
no absolute bar on appointment of Advocate-Commissioner in a
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CRP.No.1542 of 2024
suit filed for perpetual injunction as per the provisions of Section
75 or Order XXVI Rule 9 CPC.
21. Applying the ratio laid down by the Hon’ble Supreme Court
in Haryana Waqf Board‘s case (cited supra) and by a Division
Bench of this Court in P.Sreedevi‘s case (cited supra), it is always
appropriate to appoint an Advocate-Commissioner for survey of
land when there is a dispute with regard to location and identity of
the disputed land.
22. In the present case, the plaintiffs are contending that the land
claimed by them is in Sy.No.10/22/AA, whereas the defendants
claim the land in Sy.Nos.10/92 and 10/97 of the same Village, i.e.,
Batasingaram Village and therefore, ratio laid down by the Hon’ble
Supreme Court in Haryana Waqf Board‘s case and a Division
Bench of this Court in P.Sreedevi‘s case are squarely applicable to
the facts of the present case.
23. In view of the above facts and circumstances of the case
and also in the light of the ratio laid down by the Hon’ble Supreme
Court in Haryana Waqf Board‘s case (cited supra), which is
squarely applicable to the present case, this Court is of the
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considered view that the trial Court rightly allowed the application
filed by the defendants for appointment of Advocate-
Commissioner and this Court do not see any merit in the Revision
Petition warranting interference by this Court in the impugned
order, therefore, the Revision Petition is liable to be dismissed.
24. Accordingly, the Civil Revision Petition is dismissed.
25. Pending miscellaneous applications, if any, shall stand
closed.
_____________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date:05.02.2025
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