THE HON’BLE Ms. JUSTICE G.ROHINI CIVIL REVISION PETITION No.4143 OF 2013
Date: 21.01.2014
Between:
S. Anjana Reddy and another .. Petitioners And Sri Madineni Sudhaker and two others .. Respondents THE HON’BLE Ms. JUSTICE G.ROHINI
CIVIL REVISION PETITION No.4143 OF 2013
ORDER:
This revision petition is directed against the order dated 04.09.2013 in I.A. No.861/2013 in I.A. No.245/2013 in O.S.No.934/2013 on the file of the Court of the XI Junior Civil Judge, City Civil Court, Hyderabad.
The revision petitioners are the defendants 1 and 2 in O.S.No.934 of 2013. The respondents 1 to 3 herein are the plaintiffs and the suit is filed for perpetual injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiffs in respect of the plaint schedule property. The plaintiffs also filed I.A. No.245/2013 under Order XXXIX Rules 1 and 2 of C.P.C. for temporary injunction and initially status-quo was directed to be maintained.
Subsequently the plaintiffs filed I.A. No.829/2013 alleging that the defendants in deliberate violation of the interim order of status-quo had demolished the structures standing on the suit schedule land on 20.07.2013 resulting in completely altering the nature of the suit schedule land. It was also alleged that on 11.08.2013 the defendants made an attempt to erect new constructions thereon. Therefore, the petitioners prayed to punish the defendants for violating the interim order of status-quo.
The plaintiffs have also filed I.A.No.861 of 2013 under Order XXVI Rule 9 of C.P.C. with a prayer to appoint an Advocate Commissioner to earmark the boundaries of the suit schedule property and note down the physical features of the same with the help of the Mandal Surveyor. The said application was opposed by the defendants 1 and 2 denying the allegation that on 20.07.2013 the defendants had highhandedly demolished the structures standing on the suit schedule property and contending that the suit schedule property is only an open land. It was further contended by the defendants that the plaint schedule property belongs to the defendant No.2 temple and by order dated 14.06.2013 the Revenue Divisional Officer, Hyderabad issued O.R.C in favour of the temple and even the possession was handed over to them under a Panchanama with the help of policemen, V.R.O and the concerned Surveyor. Against the said order of the Revenue Divisional Officer dated 14.06.2013 the plaintiffs filed W.P. No.21780/2013 and the same was disposed of by this Court by order dated 24.07.2013 relegating the writ petitioners to the statutory remedy of appeal under the provisions of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. Even with regard to the alleged demolition of the structures this Court left it open to the writ petitioners to file a suit for damages for the alleged illegal demolition. Against the said order the plaintiffs filed Writ Appeal No.1412/2013 and the same was dismissed by the Division Bench by judgment dated 19.08.2013. Thus, it is contended by the defendants that the allegation that they had deliberately violated the order of status-quo and got the structures demolished is absolutely false and without any basis and therefore there is no need even for appointment of Advocate Commissioner as sought by the plaintiffs.
After hearing both the parties the Court below by the order under revision allowed I.A. No.861/2013 and appointed an Advocate Commissioner to note down the physical features of the plaint schedule property observing that it is necessary to appoint a Commissioner to identify the property and boundaries which are in dispute.
The said order dated 04.09.2013 is assailed by the defendants 1 and 2 in this revision petition contending inter-alia that in the facts and circumstances of the case, particularly in view of the pendency of I.A. No.829/2013 filed under Order XXXIX Rule 2A of C.P.C. for punishing the defendants for the alleged violation of the interim order of status-quo, the appointment of Advocate Commissioner is not warranted at all.
On the other hand it is submitted by the learned counsel for the respondents 1 to 3 / plaintiffs that the Court below has rightly appointed the Advocate Commissioner and the order under revision warrants no interference.
The material available on record shows that the defendant No.1 filed a detailed written statement in the suit contending that the suit itself is not maintainable under the provisions of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act 30 of 1987) since the defendant No.2 temple is under the administrative control of the Endowments Department. The further contention was that the suit was collusive in nature and the plaintiffs do not have any valid title over the said property, and the title claimed by the plaintiff No.3 under a registered gift deed dated 22.06.2004 is untenable since the said document is a fabricated document. The allegation that the plaintiffs had constructed a house and compound wall over the plaint land has also been denied. It is further claimed that the plaint schedule property is Inam property granted to the temple and they are inam lands and after due enquiry O.R.C was issued under the provisions of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 in the name of Sri Bhagwandas Pujari of the temple in respect of Ac.1.20 guntas. The said O.R.C was granted after giving notices to all the interested parties. It is further contended that there were certain existing buildings in certain lands in Survey No.110 and they did not take the possession of the same. However, the rest of the open land was levelled and was taken possession by the defendants which was approximately coming up to Ac.2.10 guntas. From the above noticed pleadings, it appears that the matter involves several disputed questions of fact. Moreover, I.A. No.245/2013 filed for temporary injunction is still pending and no final order as such is passed as of today except an order of status-quo. The other application being I.A. No.829 of 2013 filed under Order XXXIX Rule 2A of C.P.C. is also pending and the question whether there is any violation of the order of status-quo is yet to be decided. Under the circumstances it appears to me that there is no need for appointment of an Advocate Commissioner at this point of time for noting the physical features.
The law is well settled that in a suit for injunction it is not permissible to appoint an Advocate Commissioner to note down the physical features since it would amount to collecting evidence in favour of one of the parties. However, this is a case where both the parties are claiming title in respect of the suit schedule property and as per the version of both the parties certain structures were existing on the suit land. Whether the structures stated to be existing by the time of filing of the suit were subsequently demolished or not in my considered opinion is the question which has to be decided by adducing necessary evidence and it is not necessary to appoint an Advocate Commissioner at this point of time.
Accordingly, the order under Revision is hereby set aside and the Civil Revision Petition is disposed of with a direction to the Court below to dispose of I.A.No.245/2013 filed under Order XXXIX Rules 1 & 2 of C.P.C. and pass appropriate order in accordance with law and thereafter if necessary it is open to the Court below to consider I.A.No.861/2013 and pass appropriate order afresh in accordance with law.
The Civil Revision Petition is accordingly disposed of. No costs.
Consequently, Miscellaneous Petitions, if any, pending in this Revision Petition shall stand closed.
G. ROHINI, J Date: 21.01.2014 MVA
THE HON’BLE Ms. JUSTICE G.ROHINI
CIVIL REVISION PETITION No.4143 OF 2013 Dated: 21.01.2014
MVA