The Hon’ble Sri Justice C.V.Nagarjuna Reddy Civil Revision Petition No.1804 of 2014
Dated 25.09.2014
Between:
Pyata Pentaiah …Petitioner And Golla Ramulu and 4 others.
…Respondents Counsel for the petitioner: Mr.Arun Kumar Doddla Counsel for respondent No.1: Mr.K.Amarnatah Yadav The Court made the following:
Order:
This Civil Revision Petition arises out of Order, dated 21.04.2014, in IA.No.8 of 2013 in OS.No.57 of 2013, on the file of the Court of the learned Junior Civil Judge, Chevella, Ranga Reddy District (for short ‘the lower Court’).
The petitioner filed the above-mentioned suit for permanent injunction restraining the respondents from interfering with his possession of the suit land admeasuring Acs.3-20 guntas in Survey No.12/1 situated at Ubagunta Village, Shabad Mandal, Ranga Reddy District. In the said suit, respondent No.1 herein, who is defendant No.2, filed IA.No.8 of 2014 under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC), for appointment of an Advocate-Commissioner. In the affidavit filed in support of the said application, he has pleaded that he is the owner and possessor of the land in Survey No.12/9 and that, as the boundaries mentioned in the plaint relate to the said survey number, it is necessary to ascertain whether the suit land falls in Survey No.12/1 or 12/9.
The said application was resisted by the plaintiff by filing a counter-affidavit. However, by the order under revision, the lower Court has allowed the same.
In its order, the lower Court has stated that in a suit for perpetual injunction, the plaintiff has to establish his possession over the suit land and that where the identity of the suit land is in dispute, an Advocate-Commissioner can be appointed to note down the physical features. Accordingly, the lower Court has appointed an Advocate-Commissioner to ascertain whether the suit land is situated in Survey No.12/1 or 12/9.
In my opinion, the whole approach of the lower Court is unsound. As observed by it, the initial burden lies on the plaintiff to prove his case that he is in possession of the suit schedule property. He has to discharge this burden by adducing oral and documentary evidence. Similarly to disprove the plaintiff’s case, the defendants also can adduce their own evidence. As noted above, the only dispute that arises in the suit is whether the suit land is situated in Survey No.12/1 or 12/9. This Court is unable to comprehend as to how an Advocate-Commissioner can resolve this dispute. It is not a case where the Advocate-Commissioner is appointed to note down the physical features of the land, but he is appointed to submit his report as to the survey number, in which the suit land is situated. In effect, the lower Court has abdicated its function of adjudication of a dispute arising in the suit to the Advocate-Commissioner.
In this view of the matter, the order of the lower Court is wholly unsustainable and the same is, accordingly, set aside.
The Civil Revision Petition is allowed and IA.No.8 of 2013 in OS.No.57 of 2013, on the file of the Court of the learned Junior Civil Judge, Chevella, Ranga Reddy District, is dismissed.
As a sequel, interim order, dated 03-07-2014, is vacated and CRPMP.No.2537 of 2014 is disposed of.
(C.V.Nagarjuna Reddy, J) Dt: 25th September, 2014 LUR