THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4107 of 2010 Date:09th March, 2011 Between: K.Veeramma ..... Petitioner/Plaintiff AND 1. Smt.Urmiladevi & Anr. .....Respondents/Defendants *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4107 of 2010 ORDER: This Civil Revision Petition is directed against the order, dated 16.07.2010 passed in I.A.No.62 of 2010 in O.S.No.3 of 2010 on the file of the Junior Civil Judge, Alampur, Mahabubnagar District, whereby and whereunder the learned Junior Civil Judge dismissed the application filed by the plaintiff under Order 26, Rule 9 CPC. 2. The petitioner is the plaintiff and the respondents are the defendants in O.S.No.3 of 2010. The plaintiff filed the suit for mandatory injunction directing the defendants, their men and agents to demolish and remove the illegal construction made by them on joint wall shown as AF in the plaint plan and restore the original position. It is pleaded in the plaint that AF wall shown in the plaint plan is a joint wall and they have cupboards in the said joint wall. For better appreciation, I may refer para.4 of the plaint, which reads as hereunder: “4. The defendants having houses on northern side of the plaintiff’s open space. There is a joint wall between the plaintiff and defendants houses shown as in the plaint plan AF in the plaint plan. There are cupboards in the said joint wall inside the plaintiff side. It is joint wall by physical features. Not only that the defendant has also admitted in writing on 13.09.1988 that the wall is in between both the plaintiff open space and defendants house in a joint wall. In the said joint wall the plaintiff and defendants having a joint right and they are using only as a joint wall. If the plaintiff will construct anything on the joint wall she will have to obtain permission from defendants joint owner. Likewise if the defendants will construct anything on joint wall shown as AF in the plaint plan they will have to obtain permission from plaintiff as the plaintiff is a joint owner on AF wall. It is submitted that the defendants have no right and title over the AF joint wall exclusively. Now the defendants without obtaining any permission from the plaintiff started construction on AF wall shown in plaint plan. It is submitted that the defendants constructing the AF wall shown in the plaint plan upto 6” approximately though the plaintiff objected the same. To do so the defendants have no manner of right and title exclusively over the AF wall shown in the plaint plan. On 25.01.2010 the defendants trying to further construction on AF joint wall, the plaintiff and others are resisted the illegal construction made by the defendants. Then the defendants and their followers went away with a threat that they will come again with more men and finish further construction with in no time. The defendants are powerful persons in the said locality. The plaintiff is unable to resist the acts of the defendants physically unless the highhanded illegal further construction of the defendants are prevented by way of permanent injunction by the Hon’ble Court, the plaintiff rights will not be protected. Hence, the suit is filed for permanent injunction restraining the defendants and their men and agents not to make any further construction joint wall shown as AE in the plaint plan and for mandatory injunction directing the defendants their men and agents to remove the unauthorised construction on joint wall shown as AF in the plaint plan and restore the original position.” The defendants entered appearance and filed written statement resisting the claim of the plaintiff. The plaintiff filed I.A.No.62 of 2010 under Order 26, Rule 9 CPC seeking appointment of an advocate commissioner to inspect the joint wall shown as AF in the plaint plan and to note the physical features. It is stated in the affidavit filed in support of the petition that there are cupboards in the said joint wall and other physical features of the joint wall are required to be noted to infer that it is a joint wall and not the exclusive wall of either of the parties. The defendants filed counter resisting the application. It is stated in the counter that the physical features of the suit premises do not in any way aid or help for determination of the suit in question. The learned Junior Civil Judge, on hearing the counsel appearing for the parties and on considering the material brought on record, proceeded to dismiss the application on the ground that even if the advocate commissioner is appointed, he cannot determine whether the disputed wall is a joint wall or exclusive wall, by order dated 16.07.2010. Hence, this revision. 3. Notice before admission came to be ordered on 22.10.2010. The respondents entered appearance through a counsel. 4. Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents. 5. Learned counsel appearing for the petitioner/plaintiff submits that the relief sought for in I.A.No.62 of 2010 is appointment of an advocate commissioner to note the physical features of the AF plaint plan wall and not to adjudicate upon the issue whether AF plaint plan wall is a joint wall or exclusive wall of any of the parties. A further submission has been made that the trial Court misdirected itself with regard to the nature of the relief sought for in the I.A. and thereby erred in dismissing the application. 6. Learned counsel appearing for the respondents/defendants supported the order impugned in the revision. 7. The petitioner/plaintiff filed I.A.No.62 of 2010 seeking appointment of an advocate-commissioner to note down the physical features of the AF wall shown in the plaint plan. The petitioner specifically stated in the affidavit filed in support of the petition that he has cupboards in the said joint wall and therefore, the Advocate Commissioner is required to be appointed to note down the said cupboards in the said joint wall. It is nowhere stated in the affidavit that the appointment of advocate commissioner has been sought for to decide wither the AF wall shown in the plaint plan is a joint or exclusive wall. The trial Court misdirected itself with regard to the nature of the relief sought for in the I.A. and thereby erred in dismissing the application. 8. Accordingly, the Civil Revision Petition is allowed setting aside the order, dated 16.07.2010, passed in I.A.No.62 of 2010 in O.S.No.3 of 2010 on the file of the Junior Civil Judge, Alampur, Mahabubnagar District and consequently, I.A.No.62 of 2010 shall stand allowed. Learned Junior Civil Judge has to appoint an Advocate Commissioner to note down the physical features of the AF wall shown in the plaint plan. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:09th March, 2011. cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4107 of 2010 Date:09th March, 2011