CRP/1741/2019 of Unnam Bixamaiah Vs Sheshraju Bixmaiah on 30 December 2022

HIGH COURT FOR THE STATE OF TELANGANAAT HYDERABAD

FRIDAY, THE THIRTIETH DAY OF DECEMBERTWO THOUSAND AND TWENTY TWO

PRESENTTHE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

CIVIL REVISION PETITION NO: 1741 OF 2019

Petition under Arlicle 227 of Constitution of lndia, aggrieved by the orderdated 03/06/201 9 in lA No.51 of 2019 in OS No.'l08/2015 on the file of the Court ofthe Junior Civil Judge, Nidamanoor.

Between:

Unnam Bixamaiah, S/o Kotaiah, Aged about 66 yrs. occ. Agriculture, Rl/oNidamanoor village and Mandal, Nalgonda District....PET|TIONER/PETIT|ONERAND

Sheshraju Bixmaiah, s/o Lalaiah, Aged about 61 yrs. occ. Agriculture, r/o H.No.5-1 16, Nidamanoor village and Mandal, Nalgonda District.

...RESPONDENT/ RESPONDENT

lA NO: 1 OF 2019

Petition under Section 1 51 of CPC praying that in the circumstances statedin the affidavit filed therewith, the High Court may be pleased to stay all furtherproceedings in O.S.No. 108 of 2015 on the file of the Court of the Principal JuniorCivil Judge, at Nidamanoor, pending disposal of the above CRP

For the Petitioner : SRI V.SATYAM REDDY, Advocate For the Respondent : SRI P.PRABHAKAR REDDY, Advocate The Court made the following: ORDER

I'HI.- HONOTIR,{BLI.] SI{I .I T S'I ICE A.SANTHOSII REDDY

C.R.l'.No. l7.ll OF 2019

oRDt,)t:

.1'his civil rcr ision pe tition. urrdcr Anicle 217 of the Constitutionof India, is directed against the order dated 03-06-2019 in I.A.No.5l of2019 in O.S.No.l08 of l0 15, on thc llle of the leamed Junior CivilJudge. Nidamanoor. rvherein thc sritl application filed by the petitionerherein under Orcle l XXVI Ilule 9 rcad rvith Section l5l of the Code ofCivil Procedure, l()08 [(fbr ]short 'CPC') lor appointment of advocateconurissioner to localiz!- thc suiL schcciule piopeny. was disnrissed.

2. I leard iearned counsel lbr thc petitioner and learned counsel forrespondent. Perused the record.

3. Respondent herein - plaintifTflled suit in O.S.No. 108 of 2015lorperpetual injunctiorr against the pclitioner herein - defendant. While so,the trial of the suit u'as in prosress, the petitioner herein filed anapplication in I.A.No.5l ol 2019 under order XXVI Rule 9 read withSeclion 151 CPC, lor appointnrent of advocate commissioner toconduct re-invesrigation in respcct ol'location ol the schedule property.The re'spondent rcs sted thc sarne- bv filing counter. On consideration of the material on record, the trial Court dismissed the said applicationhotding that if an advocate comr.nissioner is appointed, it will ceftainl),amount to collection of evidence. Aggrieved by the same, the presentcivil revision petition is flled.

4. Learned counsel lor the petitioner submits that under the guise oftemporary injunction orders, when the respondent is trying to encroachinto the petition schedule propefty and trying to make constructions,an advocate commissioner shall have to be appointed for the purpose oflocal investigation in respect ol location of the schedule property andthe trial Court has comrnitted an enor in dismissing the application filedfor the said purpose. Therefore, he prayed to allow the revision.5. On the other hand, learned counsel for the respondent subrnitsthat on the request of the petitioner, the Govemment Surveyor inspectedthe schedule premises and measured the land in survey Nos.374 and375 of the petitioner, demarcating and fixed the boundaries andconducted panchanama. T'he trial Court has rightly dismissed theapplication and the impugned order is devoid ol any illegality andprayed to dismiss the revision petition.

6. A perusal ol the impLrgncd older shorvs that the petitioner hasapplied fbr clenrarcation ol' thc boundaries w'ith the help ofa Government Sun,cyor and thc Govemment surveyoi' measured thelands in both survey nurnber Nos. 374 and 375 and prepareda panchanama. 1'he survey,rr rvas also examined as DW5 in the suitand his evidencc rvas recordctl. I'he learned counsel fbr the respondentf'airly stated that, in tact, there is no encroachment into the land of thepetilioner and tllev are accepting thc repoft of Government Surveyorwho fixed boundaries under tlrc panchanarna Ex.86. "The object oflocal investigation under Order'16 ftule 9 CPC is to collect evidence atthe instance of the party who relies on the same and which evidencecannot be taken in Court br-rt could be taken only liom its peculiarnature on the spot. Such evidence will elucidate a point which mayotherwise leave any doubt or ambiguity in record."

7. In the instant case, as tlre- petitioner has already got demarcatedthe land and fixed the boundaries with the hetp of GovernmentSurveyor under cover ol panchnarna and was also examined as DW5and his evidence was also recorded, there is no need of appointment ofan advocate commissioner at rhis stage. ['Ihe ]trial Court has rightty,r I

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appreciated all the l-acts and disalloncd the application lor appointrnentol'advocalc comr.r.rissioner. Ido not find anl illegalitl, or infinnity in theimpugned order warranting interference of this Court under Article 227of Constitution of India.

5. Accordingly, the civil revision petition is dismissed. There-shallbe no order as to costs.

6. As a sequc'1, rrisccllaneous applications pending, il any, shallstand c lose d.

Sd/-IVIOHD. ISIMAILASSISTANTGISTRAR

//TRUE COPY//

SECTION OFFICER

To1. The Junior Civil Judge, at Nidamanoor.1. The Junior Civil Judge, at Nidamanoor.

2. One CC to Sri V.Satyam Reddy, Advocate [OPUC]3. One CC to Sri P.Prabhakar Reddy, Advocate [OPUC]3. One CC to Sri P.Prabhakar Reddy, Advocate [OPUC]

4. Two CD CopiesKjt"0.

HIGH COURTDATEO:3011212022