IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

MONDAY, THE EIGHTH DAY OF NOVEMBER TWO THOUSAND AND TEN

PRESENT HON'BLE SRI JUSTICE G. BHAVANI PRASAD

CIVIL REVISION PETITION Nos.2909 & 4752 OF 2010

Between:

Peddi Srinivas & another

..... Petitioners

And

M/s. Crafmen Products Private Limited

…Respondent

The Court made the following:

HON'BLE SRI JUSTICE G. BHAVANI PRASAD

CIVIL REVISION PETITION Nos.2909 & 4752 OF 2010 COMMON ORDER:

The Civil Revision Petitions arise out of the common order passed in I.A. Nos.291 and 292 of 2010 in O.S.No.151 of 2006, on the file of the Senior Civil Judge's Court, Bhongir, dated 26.03.2010 and are hence, being disposed of by this common order.

2. I.A.No.291 of 2010 was filed by the revision petitionersdefendants for reopening the suit and I.A.No.292 of 2010 was filed by them for the appointment of an Advocate Commissioner to fix up the boundaries of the land of the revision petitioners-defendants and to note the physical features with the assistance of the Mandal Surveyor.

3. The revision petitioners-defendants claim that the suit land ends at S.Nos.604, 608 and 601 on southern, eastern and western boundaries while northern boundary is part of S.No.605 belonging to the first defendant. A portion of the land on the south east and west of S.No.605 was lost by the respondent-plaintiff due to which it was trying to encroach upon an equal portion of the land of the first defendant to an extent of about Acre 0.15 guntas in respect of which the first defendant already gave a criminal complaint. The plaintiff is not coming forward to co-operate with the demarcation of the respective lands and as oral evidence cannot decide the real matter in controversy between the parties, the defendants came up with the request.

4. The plaintiff opposed the applications on the ground of delay and also contending that the suit schedule property was purchased from the Andhra Pradesh State Financial Corporation which delivered the property under its proceedings along with a precise map and clear measurements. Hence, the question of

demarcation does not arise herein and hence, the plaintiff desired the applications to fail.

5. The trial Court rendered the impugned order noting that the applications were filed at the stage of the counsel for the plaintiff arguing the matter after the conclusion of the trial in the suit for permanent injunction and it also noted that the title to the property was not in dispute. The trial Court also observed that the defendants did not file any suit for recovery of possession based on the title and the sole question involved being the possession of the plaintiff of the suit property by the date of the suit, the defendants cannot seek delegation of the judicial functions of the Court to a Commissioner to note the physical features and survey the land, more so, when they neither filed a suit nor sought for the relief of possession against any encroachment. The trial Court also referred to the precedents cited before it, which were in respect of suits for a declaration of title and injunction or possession and opined that the question of appointment of a Commissioner to measure the lands does not arise in the suit for mere injunction. Both the applications stood, accordingly, dismissed without costs.

6. The defendants approached this Court with these Civil Revision Petitions against the said common order contending that the physical features of the land and boundaries of the lands of both parties ought to have been permitted to be noted through an Advocate Commissioner with the assistance of a Mandal Surveyor and in comparable cases, the Supreme Court and this Court held that a Commissioner can be appointed in a dispute concerning possession of property to resolve the boundary dispute. The revision petitioners also contended that the plaintiff should have no grievance for measuring the land of the first defendant as per his sale deed which was much prior to the purchase by the plaintiff in auction.

7. Sri A. Rajasekhar Reddy, learned counsel for the revision petitioners and Sri B.N. Swamiji, learned counsel for the respondent are heard.

8. The point that arises for consideration is whether an Advocate Commissioner has to be appointed for the purposes claimed by the defendants and if so, whether the suit has to be reopened for the purpose?

<span id="page-3-0"></span>9. Sri A. Rajasekhar Reddy, learned counsel for the revision petitioners referred to various precedents, the copies of which are enclosed in the material papers and in HARYANA WAQF BOARD VS. SHANTI SARUP AND OTHERS [1] , the Apex Court was dealing with a suit for declaration and injunction in which the dispute was in respect of the encroachment of the suit land. The Apex Court found the rejection of a request for the appointment of a Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, to be not correct as such a local Commissioner should have been appointed for the purpose of demarcation in respect of the suit land. There the pleadings of the parties did not disclose any denial of the allegation of unauthorized possession and the controversy was only about the demarcation of the suit land. In the present case, neither the plaintiff admitted nor atleast did not deny the allegations of any encroachment or trespass made by the defendants. It is the positive case of the plaintiff that his possession of Acres 5.00 guntas of land was in pursuance of delivery of possession consequent to purchase in auction from the State-owned Andhra Pradesh State Financial Corporation. The dispute is not about demarcation of the lands herein but about the identity of the land purchased by the plaintiff.

<span id="page-3-1"></span>10. In M.L. SRINIVAS RAO VS. J. KURIEN[2] , a learned Single Judge of this Court was dealing with a boundary dispute between the parties to the suit and an application for appointment of

Commissioner to demarcate the lands. As the application was dismissed only on the ground that such a survey and demarcation is not permissible in a suit for permanent injunction, the learned Single Judge interfered in revision. That was obviously due to the question in controversy in that suit being a boundary dispute, unlike in the present case where the plaintiff claims possession on purchase and the defendants claim encroachment under the guise of such purchase.

<span id="page-4-0"></span>11. Similarly, in PANDIRI PEDDA SAIDAIAH AND OTHERS VS. TIRUNAGIRI PADMAVATHI [3] , another learned Single Judge of this Court was again dealing with a suit for declaration of title and injunction where an application for the appointment of the Commissioner to fix the boundaries of the lands filed by the 7 th defendant therein was dismissed by the trial Court as belated. The learned Judge opined that the issue can be effectively settled by getting the lands owned by the parties surveyed by the revenue authorities with the help of a Village map etc., so as to put an end to the litigation. That was because whether there was any encroachment upon the land belonging to the respondent by the revision petitioners or the respondent was claiming more than what he purchased under the registered sale deed was the question in issue therein. In the present case, neither the plaintiff is disputing the purchase of his land by the first defendant prior to its purchase in auction nor is the first defendant disputing the purchase by the plaintiff in auction. The dispute being about the plaintiff allegedly losing any portion of the land on the south east and west of the land purchased in auction to compensate which it is trying to encroach upon about 15 guntas of the first defendant's land. The possession of such disputed land by the date of the suit with the plaintiff does not appear to be disputed in the written statement of the defendants.

12. The learned counsel for the revision petitioners also relied

on an order of this Court in C.R.P.No.186 of 2010, dated 02.06.2010, wherein a learned Judge of this Court interfered with the refusal to grant the request for the appointment of an Advocate Commissioner in a suit for permanent injunction. However, it is seen from the factual background for that revision that the defendants were claimed to have disturbed the boundary during the pendency of the suit due to which the boundary was required to be restored to its original position. The plea was resisted on the ground that the boundary is very much demarcated by the level of the lands. In that background, the learned Judge considered that a Commissioner needs to be appointed even to make an observation of the level of the lands as claimed by the parties and also the nature of the land, whether it is wet or dry and, therefore, directed not only the noting of the physical features but also fixation of the boundaries. In the present case, the written statement of the defendants while refuting the claims of the plaintiff and asserting about the purchase and possession of property by the first defendant, of course, denied the possession and enjoyment of Acres 5.00 guntas of the suit land with the plaintiff, but further stated that the plaintiff company took law into its own hands and illegally trespassed into Acre 2.19 guntas of land of the first defendant and damaged the stones and fencing of the southern side of Acres 2.19 guntas and also cut down some teak tress on the said borders with an intention to usurp about Acre 0.15 guntas of land of the first defendant. The mischief and loss were stated to be the subject of a private complaint referred to the police in Crime No.117 of 2006 of Bibinagar Police Station and the suit was alleged to be aimed to usurp the said Acre 0.15 guntas of land out of Acres 2.19 guntas of the first defendant in S.No.605. While denying any threats, it was claimed that the plaintiff is not in possession of Acres 5.00 guntas as per the map filed by it. A reading together of all of the allegations in the written statement appears to lead to an impression of the plaintiff coming into possession of the site to an extent of Acre 0.15 guntas in the land

of the first defendant prior to the suit after the filing of the caveat before the trial Court by the first defendant. If the first defendant was out of possession of such an extent of land prior to the suit, any demarcation through an Advocate Commissioner could not have resulted in any disturbance to the possession of the plaintiff in this suit for permanent injunction, even if the plaintiff were to fail in the suit and at any rate, there could not have been any positive relief granted to the first defendant in the absence of any claim of any counter claim having been made in respect of such an extent of land. The first defendant has to get an appropriate relief concerning possession of such land either in the private complaint said to be pending before the competent Criminal Court in respect of the alleged encroachment/trespass under Section 456 of the Code of Criminal Procedure, 1973, or in any appropriate legal proceedings to which the first defendant may take recourse to before a competent Civil Court in respect of such land seeking any appropriate relief and not in the present suit under the circumstances.

13. Insofar as the present request for the appointment of a Commissioner and reopening of the suit for such a purpose is concerned, the trial Court cannot be considered to have committed any illegality or indulged in any perversity when after the completion of the trial and at the stage of the arguments of the learned counsel for the plaintiff before the trial Court, the defendants came up with such a belated request and without any plausible explanation for such prolonged silence earlier. The plaintiff's witness as P.W.1 was not stated to have admitted any suggestion made to him during cross-examination about any loss of land on the south east and west of S.No.605 from out of the land purchased by the plaintiff and under the circumstances, in the suit for mere permanent injunction simpliciter, taking recourse to the appointment of an Advocate Commissioner for any measurements of the lands with reference to the title deeds of both the parties

does not appear to be justified at that stage. The restricted revisional jurisdiction of this Court does not appear invokable under the circumstances.

14. In the counter affidavit filed by the respondent-plaintiff in C.R.P.No.2909 of 2010, it was also stated that subsequent to the purchase in auction from the Andhra Pradesh State Financial Corporation, the Andhra Pradesh State Financial Corporation got the land demarcated through a survey by the Mandal Surveyor at the behest of the Mandal Revenue Officer and boundaries of the purchased Acres 5.00 guntas were fixed under a Panchanama of Mandal Surveyor. The learned counsel for the respondent-plaintiff also submitted that the police, after investigation, filed a final report taking a view in favour of the plaintiff which led to the private complaint being pursued by the first defendant on his own. These factors apart, the exercise of the judicial discretion by the trial Court not to appoint an Advocate Commissioner does not warrant interference for the reasons above stated. However, any observations in the proceedings in O.S.No.151 of 2006 by the trial Court or herein should not operate to the prejudice of the first defendant either in the criminal case or in any other legal proceedings to which the first defendant may take recourse to in respect of the disputed Acre 0.15 guntas against the plaintiff which legal proceedings have to be determined in accordance with law on merits uninfluenced by the proceedings in this suit, which is for a permanent injunction simpliciter.

15. Subject to the above observation, both the Civil Revision Petitions are, accordingly, dismissed without costs.

_____________________ G. BHAVANI PRASAD, J

Date: 8 th November, 2010 KL

HON'BLE SRI JUSTICE G. BHAVANI PRASAD

CIVIL REVISION PETITION Nos.2909 & 4752 OF 2010

November 8, 2010.

KL

<span id="page-9-0"></span>[1] 2008 AIR SCW 6500

<span id="page-9-1"></span>[2] 1997 (1) A.P.L.J. 61 (SN)

<span id="page-9-2"></span>[3] 1997 (5) ALD 430