THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3842 of 2009 Dated:29th January, 2010 Between: 1. Sri Nanagiri Uday Raj & Anr. ….Petitioners and 1. Sri E.Bala Krishna Goud & Anr. …Respondents **** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3842 of 2009 ORDER: This Civil Revision Petition is directed against the Order dated 27.04.2009 passed in I.A.No.39 of 2009 in O.S.No.479 of 2007 on the file of I Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, Hyderabad, whereby and whereunder the learned Additional Senior Civil Judge allowed the application filed by the defendants under Order 26, Rule 9 r/w.Sec.151 CPC and appointed an Advocate-Commissioner for the purpose of noting the physical features and location of suit schedule property and also for noting the physical features of Plot Nos.37 and 38 and to demarcate Survey No.109 and lands covered by respondents with the help of a surveyor. 2. Background facts in a nutshell leading to filing of this CRP by the plaintiffs in O.S.No.479 of 2007 on the file of I Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, Hyderabad, are: The plaintiffs filed the suit for injunction in respect of suit schedule properties which are morefully described in Schedules A and B, appended to the plaint. The 1st plaintiff claims that he is the absolute owner and possessor of the plot bearing No.38 comprising S.Nos.106 and 107 admeasuring 200 sq. yards situated at Kothapet Village, Uppal Mandal, R.R. District, having purchased the same under a registered sale deed dated 05.05.1999, document No.3291 of 1999. The 2nd plaintiff claims that he is the absolute owner and possessor of the plot bearing No.37 comprising S.Nos.106 and 107 admeasuring 200 sq. yards situated at Kothapet Village, Uppal Mandal, R.R. District, having purchased the same under a registered sale deed dated 05.05.1999, document No.3290 of 1999. The defendants entered appearance and filed written statement contending that they are the owners and possessors of the land admeasuring Ac.2.08 guntas of land in Sy.No.109 situated at Kothapet Village, Uppal Mandal, R.R. District. The defendants filed I.A.No.39 of 2009 under Order 26, Rule 9 r/w.Sec.151 CPC seeking the following relief: “For the reasons stated in the accompanying affidavit, the petitioners pray that this Hon’ble Court may be pleased to appoint an Advocate Commissioner for the purpose of recording the physical features and location of the suit schedule property and also the land of Ac.2.08 gts. in Sy.No.109 with the help of Mandal Surveyor, situated at Kothapet Village, Uppal Mandal, R.R. District and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.” In Para.8 of the affidavit filed in support of the petition, the defendants stated that they are not concerned with the title of the respondents/plaintiffs to 400 sq. yards of land in Plot Nos.37 and 38 in Sy.No.106 and 107 situated at Kothapet Village. For better appreciation, I may refer para.8 of the affidavit filed in support of the petition, which reads as hereunder: “I submit that I am not concerned with the title of the respondents/plaintiffs to 400 sq. yds. of land in Plot No.37 and 38 in Sy.No.106 and 107 situated at Kothapet village. I have no objection if they are in possession of the said land which is nothing to do with my land of Ac.0.29 gts in Sy.No.109. Even according to their case the respondents have no land in Sy.No.108 and 109. But under guise of the sale deeds dated 5.5.1999, executed in their favour, the respondents who purchased plot Nos.37 and 38 in Sy.No.106 & 107 situated at Kothapet Village made many attempts to occupy part of the land of Ac.2.08 gts belonging to me, B.Anitha and Chama Krishna Reddy, claiming that their land of 400 Sq. Yds. in Sy.No.106 and 107 is in our land of Ac.2.08 gts which is in Sy.No.109.” The plaintiffs filed counter resisting the application of the defendants, filed under Order 26, Rule 9 r/w.Sec.151 CPC. They have stated in the counter that Sy.Nos.106 and 107 are not vacant as on this day and number of houses have been constructed in the said survey numbers, where the suit schedule plots are located. Para.7 of the counter needs to be noted and it is thus: “It is submitted that in reply to para. No.9 of the affidavit, it is denied that the land in Sy.Nos.106 and 107 are vacant as on today. Infact, number of houses have been constructed in the Sy.Nos.106 and 107 where the suit schedule plots are located. It is denied that the suit schedule property is in Sy.No.109 and the same is in possession of the Petitioner No.2, Smt.E.Kalavathi. In view of pleas taken by the petitioners and the respondents, the appointment of the Advocate- Commissioner is not at all required to survey the suit schedule property and the land Ac.2.08 gts. in survey No.109 with the help of Mandal Surveyor to record the physical features of the lands and inform the Court whether the suit schedule property is in Sy.No.106 and 107 or in Sy.No.109. It is further denied that under the guise of the Injunction Order, the respondents are trying to interfere with the land in Sy.No.109. The Respondents/Plaintiffs are in peaceful possession and enjoyment of the suit schedule property (Plots) by virtue of Regd. Sale Deeds since the year 1999 onwards in Sy.Nos.106 and 107. It is denied that if the Respondents/plaintiffs construct the building in the suit schedule property and the Advocate- Commissioner is not appointed, the petitioners would suffer irreparable loss. Even after passing the Injunction orders in favour of the Respondents/Plaintiffs, the Petitioners/defendants are still trying to interfere into the peaceful possession of the suit schedule properties, for which the Plaintiffs have also lodged a police complaint with SHO, Saroornagar, and accordingly, filed the I.A.No.4864 of 2008 seeking relief for contempt proceedings against the petitioners/defendants and the same are pending enquiry/disposal.” The learned Additional Senior Civil Judge, on considering the material brought on record and on hearing the learned counsel appearing for the parties, proceeded to appoint an Advocate-Commissioner to note down the physical features in Sy.No.109 and physical features of Plots No.37 and 38, to locate suit plots, to demarcate Sy.No.109 and lands covered by respondents with the help of a Surveyor, by order dated 27.04.2009. Hence, this revision by the plaintiffs. 3. The CRP came to be admitted on 22.09.2009. An interim order also came to be granted on the even date vide CRPMP No.5302 of 2009. The respondents/defendants entered appearance through a counsel and filed CRPMP No.6936 of 2009 to vacate the interim order granted on 22.09.2009. When the vacate stay petition came up for consideration, with the consent of the learned counsel appearing for the parties, the CRP itself is taken up for final disposal. 4. Heard learned counsel appearing for the petitioners/plaintiffs and learned counsel appearing for the respondents/defendants. 5. Learned counsel appearing for the petitioners/plaintiffs submits that the Advocate Commissioner cannot be appointed for identification of the property or localization of the suit schedule plots. In support of his submissions, reliance has been placed on the judgment of this Court in Dammalapati Satyanarayana v. Datla Venkata Ramabhadra Raju[1]. Much emphasis has been laid by the learned counsel on paras.5 and 6 of the cited judgment, which read as hereunder: “5. In their suit, the petitioners pleaded that they purchased the property from their vendor with definite boundaries and by mistake, the Survey Numbers were mentioned as 339/5 and 6. They also pleaded that later on the Survey Numbers were rectified as 339/9 and 10, but the boundaries and the extent remained the same. The respondents, in turn, referred to certain transactions, in respect of the land, not only in the said Survey Numbers but also several other bits such as 339/9B, 9H, 9I, 3B, 14A, 14B and 17A. Basically, these claims disclose that the parties are yet to be certain as to their claim in respect of any definite property. The Court has to identify the exact area of controversy and frame necessary issues. The parties, in turn, have to adduce oral and documentary evidence with reference to the issues, so framed. Unless these aspects are clear, appointment of an Advocate Commissioner would amount to an exercise to gather evidence. Further, the prayer in the I.A. is so uncertain that it would change the very complexion of the suit. The prayer reads as under: “… to appoint an Advocate Commissioner for the purpose of localizing the suit property with the help of competent surveyor, basing on the title deeds (sale deeds) of both parties with reference to the official survey and revenue records such as FMB, survey plans etc., and to draw a plan clearly demarcating the location of the suit property with survey nos, and boundaries, and the property of the plaintiffs and also to take photographs of the suit schedule property….” 6. The result of allowing the I.A. is that the Advocate Commissioner shall undertake localization of the suit schedule property with the help of a competent surveyor, basing on the title deeds of both the parties. It must be noted that the socalled title deeds must be accepted by the Court in evidence, before they constitute the basis for identification of the property. The admissibility, relevance etc., of the sale deeds can be undertaken only at the stage of recording evidence. The demarcation of the land with reference to location, survey numbers etc., must be with reference to the title deeds, which are admitted by the Court in evidence. If the report is submitted, even before the evidence is adduced, a stage may come, where the whole trial will revolve around such report.” Learned counsel also placed reliance on the judgment of this Court in Sagi Vijaya Ramachandra Raju v. Koppisetti Satyanarayana[2]. Much emphasis has been laid by the learned counsel on para.14 of the cited judgment, which reads as hereunder: “14. The trial Court appointed a Commissioner, at the instance of the respondents, for the purpose of noting the physical features. Though the order appointing the Commissioner is not in challenge before this Court, it is to be held that the very appointment was untenable. The reason is that, in an application filed under Order 39, Rules 1 and 2 C.P.C., it is for the party seeking the relief of temporary injunction, to prove possession over the property and establish a prima facie case. Appointment of Commissioner, at that stage, would certainly be a step, to enable the party to gather evidence.” 6. In Dammalapati Satyanarayana’s case (1 supra), there was a dispute with regard to the very title between the parties. But in the case on hand, there is no dispute with regard to the title of the plaintiffs in respect of Plot Nos.37 and 38. It is the case of the defendants that under the guise of the interim injunction obtained by the plaintiffs, they are trying to encroach on the land owned by the defendants in Survey No.109. Therefore, the 1st cited case has no application to the facts of the case on hand. I n Sagi Vijaya Ramachandra Raju’s case (2 supra), an observation has been made that the Commissioner cannot be appointed in an application filed under Order 39, Rules 1 and 2 CPC. Coming to the facts of the case on hand, the defendants have filed the application under Order 26, Rule 9 CPC r/w.Sec.151 CPC. Therefore, the 2nd cited decision has no application to the facts of the case on hand. 7. Learned counsel appearing for the respondents submits that the petitioners/plaintiffs having obtained the interim injunction in respect of Plot Nos.37 and 38 comprising Survey Nos.106 and 107 are trying to encroach on the land owned by the respondents/defendants in Survey No.109. 8. I have gone through the affidavit filed in support of the petition filed by the defendants under Order 26, Rule 9 CPC r/w.Sec.151 CPC. The defendants have specifically pleaded that they are not disputing the title of the plaintiffs in respect of Plot Nos.37 and 38 comprising Survey Nos.106 and 107. What the defendants asserted is that the plaintiffs, under the guise of the interim injunction, are trying to interfere with their possession in respect of the land in Survey No.109. The trial Court considered the material brought on record in right perspective and proceeded to appoint the Advocate Commissioner to note the physical features of the suit schedule land and also the land baring survey No.109. I do not see any illegality or irregularity in the order impugned in this revision warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. 9. Accordingly, the Civil Revision Petition fails and it is hereby dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:29th January, 2010. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.No.3842 of 2009 Dated:29th January, 2010. [1] 2006 (4) ALD 675 [2] 2009 (6) ALT 353