CRP/3152/2010 of Kadempally Jyothirmayee Vs A. Narasimhulu on 31 December 2010

ORDER:

This revision is directed against the order dated 1.7.20010 passed in I.A.No.116 of 2010 in O.S.No.78 of 2009 on the file of the Junior Civil Judge, Shadnagar, whereby and whereunder the learned Junior Civil Judge allowed the application filed by the defendants seeking appointment of a Commissioner to note down the physical features and also to measure the land.

2. The petitioner is the plaintiff in O.S.No.78 of 2009. She filed the suit for injunction simplicitor against therespondents/defendants. The claim of thepetitioner/plaintiff is that she has been in possession andenjoyment of Ac.10.22 guntas in Sy.No.274 situated atRangapur Village, Kothur Mandal, MahaboobnagarDistrict. She also moved I.A.No.364 of 2009 seekingtemporary injunction. The defendants resisted the said application and pleaded that the total extent of Sy.No.274is Ac.17.13 guntas and after disposing of Ac.15.23guntas, they retained Ac.1.30 guntas. Whereas, theplaintiff contended that the total extent is only Ac.15.23guntas and out of which, she acquired Ac.10.22 gunats. The trial Court, on considering the material brought onrecord and on hearing the counsel appearing for theparties, proceeded to allow I.A.No.364 of 2009 by orderdated 1.7.2010. The relevant portion of the impugnedorder reads as hereunder:

“On careful perusal of the documents of therespondents under Exs.B1 to B9, it is clear that therespondents are claiming the rights over the excessland of Ac.1-30 guntas in Sy.No.274 after leaving theextent sold by the respondents 1 and 2. It is alreadyobserved supra, that there is no document before thisCourt to show that the extent of Sy.No.274 is Ac.17-10 gunats, but not Ac.15-23 gunats only. No sketchplan, survey report or any other documents areplaced before this court by the respondents to provethat there is any excess extent in Sy.No.274 isavailable and that the said excess land is in theirpossession by the time of filing of this suit. NoPahani or other record is placed by the respondentsto show their cultivation of any such excess extent orabout any respondents to show their cultivation of anysuch excess extent or about any raising crops. Sincethe Assistant Director (S.&LR) himself cancelled theearlier supplementary setwar issued in respect of theland in Sy.No.274, the subsequent proceedings i.eissuance of patta pass book and title deed in favour of the respondent No.1 on the strength of saidsupplementary setwar got no much evidentiaryvalue. Moreover, the Hon’ble High Court was pleasedto direct the Status-quo in respect of the entries in therevenue records as on 10.11.2009 by which date thesupplementary setwar was withdrawn and thedirection was given to the Tahsildar not to implementthe supplementary setwar as directed by the surveyauthorities. In these circumstances, I am of theconsidered view that the contention of therespondents that they are in possession of excessextent of Ac.1-30 guntas in Sy.No.274 apart from theland sold to the petitioner is not acceptable, andtherefore I find no force in the contention raised bythe respondents.”

3. The learned Junior Civil Judge, on the same day,allowed I.A.No.116 of 2010 filed by the defendants andappointed an Advocate Commissioner to note down thephysical features of the suit land and also to measure it. The said order is assailed in this revision by the plaintiff.

4. Heard learned counsel appearing for thepetitioner/plaintiff and learned counsel appearingrespondents/defendants.5. Learned counsel appearing for thepetitioner/plaintiff submits that I.A No.364 of 2009 filed bythe petitioner/plaintiff came to be allowed with specificobservation that the defendants failed to place on recordthe total extent of Sy.No.274 as Ac.17.13 guntas and

having made such an observation, the trial Court is notjustified in allowing the application filed by the defendantsfor appointment of a Commissioner.

6. Learned counsel appearing for therespondents/defendants submits that the appointment ofan Advocate Commissioner has become eminent in viewof the dispute with regard to the total extent of Sy.No.274. 7. The petitioner/plaintiff filed a suit claiming Ac.10.22guntas in Sy.No.274 with specific boundaries. The totalextent of Sy.No.274 is immaterial for proper adjudicationof the issue involved in the suit. There is no need toappoint an Advocate Commissioner in the circumstancesof the case, to note down the physical features of the suitland and even if physical features of the suit land arenoted, they are in no way helpful for proper adjudication ofthe issue involved in the suit. The trial Court having madespecific observation in I.A.No.364 of 2009 with regard tothe latches on the part of the defendants in placing primafacie proof as to the total extent of Sy.No.274 is Ac.17.13gunats ought not appointed commissioner to note thephysical features and to measure the suit land.

8. Accordingly, the Civil Revision Petition is allowedsetting aside the order dated 01.07.2010 passed inI.A.No.116 of 2009 in O.S.No.78 of 2009 on the file of theJunior Civil Judge at Shadnagar and consequentlyI.A.No.116 of 2009 shall stand dismissed. No order as tocosts.

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JUSTICE B. SESHASAYANA REDDY

Date:31.12.2010

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