IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF JUNE TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE P.S.NARAYANA CIVIL REVISION PETITION No.566 of 2010 Between: Yerram Maddilety Reddy and others. … Petitioners And Burra Venkatamma @ Burrareddygari Venkatamma and another … Respondents This Court made the following: HON’BLE SRI JUSTICE P.S.NARAYANA CIVIL REVISION PETITION No.566 OF 2010 ORDER:- 1. This court ordered notice before admission on 09.03.2010 and granted interim stay for a limited period, which was subsequent thereto extended for a further limited period. 2. Respondents had been served and none represents the respondents. 3. Sri P.Veera Reddy, learned counsel representing the revision petitioners would maintain that the revision petitioners being aggrieved by the order dated 21.12.2009 passed in I.A.No.973 of 2009 in I.A.No.1136 of 2006, in O.S.No.450 of 2006 on the file of the Principal Junior Civil Judge, Nandyal had preferred this Civil Revision Petition under Article 227 of the Constitution of India. The learned counsel also would maintain that the learned Principal Junior Civil Judge, Nandyal despite the stand taken in the counter that the respondents had expressed no objection for appointment of Mandal Survey to take measurements, had dismissed the said application. Learned counsel also would maintain that it is pertinent to note that in the light of the respective stand taken by the parties and also the questions in controversy between the parties to be decided, appointment of an advocate commissioner to note down the measurements of the land in question, with the assistance of Mandal Surveyor, if necessary, may be highly essential. 5. Learned counsel also pointed out to the reasons, which has been recorded by the learned Judge and would maintain that inasmuch as the said reasons are totally unsustainable, the order under challenge to be set aside and the civil revision petition to be allowed. 6. Learned counsel also places strong reliance on the decision of this Court i n Chukka Venkatadri v. Mallavarapu Mahalakshmamma[1]. 7. This civil revision petition is filed by the revision petitioners-petitioners-defendants being aggrieved by an order dated 21.12.2009 made by the Principal Junior Civil Judge, Nandyal in I.A.No.973 of 2009 in I.A.No.1136 of 2006, in O.S.No.450 of 2006. The said application was filed under Order XXVI Rule 9 of the Civil Procedure Code, 1908, {hereinafter referred in short as “Code”, for the purpose of convenience}, praying for appointment of an advocate commissioner to measure the total extent of the petition schedule property with the assistance of Mandal Surveyor and draw plan to that effect. The learned Judge after referring to the averments made in the affidavit filed in support of the application and also the stand taken in the counter, recording reasons at paras 5 and 6, came to the conclusion that this is not a fit matter where an advocate commissioner to be appointed and accordingly dismissed the said application without costs. 8. In Chukka Venkatadri’s case (1 supra), this Court at para 13 observed as follows: “13. Hence, in the facts and circumstances of the case, without expressing any opinion on all other questions, which had been canvassed in elaboration by the learned counsel on record, I am inclined to issue the following directions as specified under: i) The learned Senior Civil Judge, Chirala to appoint an Advocate-Commissioner for the purpose of taking measurements of the total extent of survey number 146/1A of Kothapet village, demarcate, identify and exactly locate the plaint schedule property an extent of Ac.0-85 cents therein by taking the assistance of a surveyor. ii) The learned judge is at liberty to fix the remuneration of the learned Commissioner and also the other incidental aspects like giving the assistance of the surveyor and the other requests, if any, which may be made by the learned Commissioner in this regard and the parties may have to bear the expenses; iii) It is needless to say that the learned Jude is at liberty to follow the same procedure to be followed in the case of appointment of a Commissioner in usual course while exercising powers by the original Court; iv) It is also made clear that the learned Judge is at liberty to record the evidence of the said Commissioner, the surveyor either on the request of the parties or even suo – motu depending upon the facts and circumstances; v) The learned Judge to carry out these directions and submit the report along with the report of the Commissioner and the other material evidence which may be required in this regard within a period of four moths from today. vi) The learned Judge also may issue necessary suitable directions to take into consideration the title deeds which may be produced before the learned Commissioner. vii) The parties are at liberty to file the work memos if any, and assist the Commissioner in all respects. viii) Learned Judge to submit the report of the Commissioner, and the other connected material and evidence if any, recorded either at the instance of the parties or suo motu along with his remarks if any, within a period of four moths from to-day. Let the office list the matter after four months.” 9. No doubt this decision was relied on even before the learned Principal Junior Civil Judge, Nandyal and the same was distinguished. It may be true that this decision is slightly distinguishable, but the fact remains that in the facts and circumstances of the said case, certain directions had been given inclusive of the civil request, which is being made in the present case. 10. Be that as it may, the 2nd plaintiff filed an elaborate counter wherein at para 12, it was specified that therefore the Honourable court be pleased to appoint Mandal surveyor to measure and ascertain the land of Acs.3.50 cents in Sy.No.404 belonging to the plaintiffs after giving notice to all the owners of the lands in Sy.No.404 of Eranapadu village and show the lands of other owners in the plan and report. 11. The learned judge observed that this being a suit for injunction, in the facts and circumstances, since the appointment of Commissioner may be beyond the scope of adjudication in such a suit, the application cannot be allowed and accordingly the same was dismissed. 12. The contesting respondent-plaintiff filed the suit for permanent injunction and also filed I.A.No.1136 of 2006 in O.S.No.450 of 2006 aforesaid praying for temporary injunction. The said application was disposed of on 09.02.2007 with the following observations: “It is clear that the respondents are not interfered in and not trespassing into the peaceful possession and enjoyment and they are enjoying their respective properties. It is not just and proper to grant interim injunction in favour of the petitioner (respondents herein). But in the facts and circumstances of the case, both parties are directed to maintain status quo till the disposal of the suit.” 13. It is stated in the affidavit filed in support of the application praying for appointment of commissioner, by the 1st petitioner/1st defendant that the Yerram Maddilety had a son by name Adeppa. Adeppa had two sons namely Narapu Reddy and Maddilety Reddy, Narapu Reddy had a son by name Maddilety Reddy. He had two sons by name Narayana Reddy (Petitioner No.2) and Poli Reddy (petitioner No.3). Maddilety Reddy son of Adeppa had a son by name Maddilety Reddy (1st petitioner). The 1st respondent wrongly described the 1st petitioner as the son of Chinna Maddilety Reddy. In fact he is the son of Maddilety Reddy. Similarly the 1st respondent described 2nd petitioner and 3rd petitioner as the sons of Chinna Maddilety Reddy and in fact they are sons of Maddilety Reddy, son of Narapu Reddy. 14. Further it is stated that the 1st respondent admitted that their ancestors purchased 1/4th of total extent i.e., Ac.14.22 cents in survey No.404 situated in Eernapoadu village, Bandi Atmakur Mandal. So the extent of their ancestors is Ac.3.56 cents in survey No.404. It is reiterated that the 1st respondent admitted their ownership and the possession over the above extent of property as they succeeded from their ancestors. 15. Further it was averred in para 5 of the affidavit filed in support of the application that Yerram Maddilety Reddy great great grand father of the 2nd and 3rd petitioners and great grand father of the 1st petitioner along with Pittam Ramaiah purchased 1/7th of total extent of survey No.404, which roughly comes to Ac.2.00 cents under registered sale deed dated 26.07.1913 for valid consideration of Rs.50/- from Thuticherla Bala Papigadu, Thuticherla Chinna Papigadu and Thuticherla Bala Papigadu. Later on under the settlement, the said property had been taken by Yerram Maddilety. The petitioners being his legal heirs succeeded the same. The said property was shown as their northern bit of Ac.3-56 cents. The petitioners’ ancestors and later on they have been in possession and enjoyment of Ac.0-50 cents, which is towards western side of Gajula Venkata Swamy’s property, as shown in the plaint plan. So in total we have Ac.6-06 cents in survey No.404 of Eernapadu village. 16. It is also stated that the respondents suppressed the fact that their ancestors purchased Ac.2-00 in survey No.404 of Eernapadu village and Ac.0-50 cents of property was in the possession of their ancestors and later on in their possession. They brought it to the notice of the Hon’ble Court. They asserted that they are in possession of Ac.6-06 cents and they never made efforts to trespass into the property of respondents. But the respondents even after disposal of injunction petition are creating problems at the bunds, by disputing about the measurements. When they made a request to the Mandal Surveyor to measure their property and show the points to fix up the stones; the respondents are objecting for measurements on the ground that the suit is pending before the Hon’ble Court. As such the respondents’ dispute at the bunds in respect of measurements became continuous nuisance and they are provocating for criminal activities. So it is essential and necessary to seek to appoint an Advocate as commissioner to measure their extent of the property, scheduled herein i.e., A.6-06 cents in Survey No.404 of Eernapadu village limits with the assistance of Mandal Surveyor of the office of Tahsildar of Bandi Atmakur, draw a plan and submit report. 17. In the counter filed by the 2nd plaintiff, several of the averments had been denied. In para 4 it was averred that it is admitted by the petitioners that the plaintiff is owner to an extent of Acs.3-50 cents having purchased under registered sale deed dated 04.10.1911 and the fact that Yerram Maddilety and others purchased on the same day equal extent and the suit is filed by plaintiffs for permanent injunction in respect of an extent of Acs.3.50 cents in Sy.No.404 pykl restraining the defendants from trespassing or interfering with the peaceful possession and enjoyment of the property and the case of defendants is that they are not interfering with plaintiffs possession. 18. Further, it is stated that the petitioners/defendants have no land of Acs.6-06 cents as stated by them and the alleged subsequent documents dated 26.07.1913 is superfluous and there is no extent of Acs.0.50 cents towards the western side of Gajula Venkata Swamy’s property. Admittedly there are other owners in Sy.No.404 who are not parties to the suit and so if there is any dispute with regard to extent of land of petitioners/defendants it must be between petitioners/defendants and other persons who have got their lands in Sy.No.404 and who are not parties to this suit. 19. It is also stated that the 1st plaintiff paid challan and requested the Mandal Revenue Officer Baniatmakur to get her land measured in Sy.No.404 pykl to an extent of Acs.3.50 cents and the M.R.O. issued notices in R.P.B.257/2006 dated 25.05.2006 stating that the other land owners are not attending the survey in spite of several notices issued by mandal surveyor and asked for explanation and also demanding explanation why they are objecting and also stated there in that measurements will be taken according to the available records. 20. It is also stated that in spite of the said notice received, the petitioners/defendants objected the Mandal Surveyor for getting the land measured and so measurements are not taken. Served copy of notice dated 25.05.2006 served on the 1st plaintiff. 21. It is also stated that the suit is in respect of the plaintiff’s land of Acs.3.50 cents in Sy.No.404 and the defendants cannot ask to identify their alleged land of Acs.6-06 cents which is not at all in existence. On the other hand, the respondents/plaintiffs have no objection for appointment of Mandal Surveyor to measure the land of Acs.3-50 cents in Sy.No.404 of plaintiffs and the respondents/plaintiffs will bear the fees that may be fixed up by the Honourable Court to measure and ascertain the plaint schedule land of Acs.3.50 cents in Sy.No.404 situated within in the Revenue Limits of Eranapadu in Bandiatmakur Mandal. 22. In the light of the respective stands taken by the parties, the request made in the counter filed by the 2nd plaintiff is no doubt for appointment of a Mandal Surveyor to measure and ascertain the land of Ac.3-50 cents in S.No.404. It is true that the request made by the revision petitioners is for measurements of a larger extent. It is needless to say that the relevant work memos can be filed by the respective parties and at appropriate stage and the relevant respective objections also can be taken in this regard. When both parties in a way requested for appointment of commissioner, nodoubt the petitioners requesting for appointment of commissioner with the assistance of Mandal Surveyor for the purpose of measuring Ac.6-06 cents in Sy.No.404 aforesaid and on the contrary the contesting respondent taking a stand in the counter to appoint a Mandal Surveyor to measure and ascertain the lands of Ac.3-50 cents in Sy.No.404 claiming that the rest of the extent is non- existent, this Court is thoroughly satisfied that the refusal to appoint an advocate commissioner in the light of the peculiar facts and circumstances on the ground that it is only a suit for injunction, may not be sustainable for the reason that appointment of a commissioner for measurement of these lands with the assistance of mandal surveyor would be highly essential to decide the questions in controversy. However, it is made clear that this court is not inclined to express any opinion touching the other merits and demerits. The parties are at liberty to file their respective work memos and also to file their appropriate objections, if they are so advised, at the appropriate stage. 23. Subject to the above observations, the civil revision petition is hereby allowed. No costs. _________________ P.S.NARAYANA, J 3rd June 2010 lmv [1] 2006(3) ALT 353