CRP/3097/2015 of K ANASUYAMMA AND ANOTHER Vs G BALAIAH , AGGU BALAIAH AND ANOTHER on 31 December 2021

ORDER:

This C R.p. is filed by the defendants in the suit,questioning t he order d.ated 27 .7 .2O 15 passed in I.A.No.7 of2015 in O.S No.4599 of 2OOg on the file of principal RentController-cu n-XII Junior Civil Judge, Hyderabad.

2. The suit in O.S.No.4S99 of 200g was filed for mandatoryinjunction to Cemolish the illegal and unlawful constructionon upper thrr e floors of defendants 1 and 2 on the plaintiffproperlr's co' nmon wall. In the said suit, plaintiff firedI.A.No.7 of 2O 5 under Order 26 Rule 9 read with Section l5 1of CPC to aptr oint an Advocate Commissioner to note downthe physical fe rtures incruding measurement of lt,a1ls betweenCIB Quarter r{o.15/B and, 14 lB. The trial Court, afterconsidering th : matter, allowed the application by impugnedorder dated 2,.2.2015, appointing Mr.B.preetam Singh, asAdvocate Comr rissioner to note down the physical features inbetween CIB ( uarter Nos. l5/B and l4/B and also to notedown in his rr port whether there exists a common waII inbetween both .he quarters and also to measure the jointcommon wall ir. between the said quarters. euestioning thesaid order, th: present revision petition is liled theby defendants.

3. According to the learned counsel for revisionpetitioners/ defendants, the suit is filed for mandatoryinjunction for demolition of the constructed portion of thedefendants and it is for the piaintiff to plead and prove hiscase instead of collecting evidence through AdvocateCommissioner. It is further stated that the plaintiff is asubsequent purchaser to that of defendants and he cannot bealiowed to contend that the wall between the parties is acommon wall, which is contrary to the record and withoutany valid proof. It is also stated that the defendants havepurchased the property on 8.4.1969, much prior to thepurchase of plaintiff's mother who purchased on 9.6. 1994.

4. The learned counsel for the revision petitioners/defendants submitted that in the written statement filed bydefendants, it is categorically stated that in the sale deed ofplaintiff's mother in respect of Qr.No.15/B, no common wal1is mentioned in the recitals or it was shown in the planannexed to the sale deed and there is no common wallexisting between plaintiff and the defendants quarters,therefore, the question of encroachment on to the allegedcommon wa1l by the defendants does not arise. Therefore, theimpugned order passed by the trial Court, directing theAdvocate Commissioner to note down the physical features ofthe subject property and also to note there exists a common /

wall or not, is arbitrary, illegal and contrary to the record andtherefore liabl: to be set aside.

5. Heard tl Le learned counsel for revision petitioners andperused the rr cord.

6. Since tl e defendants specifically contended in theirwritten staten ent that there is no common wall in existencebetween the plaintiff.and defendants, the impugned order ofthe trial Court appointing the Advocate Commissioner to notedown whether there exists a common wall or not is errorapparent on t he.face of the record and is liable to be setaside.

Accordin 31y, the C.R.P. is allowed, setting aside theorder dated 27.7.2015 passed in I.A.No.7 of 2015 inO.S.No.4599 c12008 on the file of principal Rent Controller-cum-XII Juni< r Civil Judge, Hyderabad. There shall be noorder as to c )sts. Miscellaneous petitions pending, if any,shall stand closed.

{iD/-K.SAILESHIASSISTANT REGISTRAR

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SECTION OFFICER

To,l The Principar Re rt controrer^-c.u.m- 12rh Junior civir J-udge. Hyderabad.?. 3. One 9n" cc [CC ]to [to Sri L. prabhakar ]sri B. Ajay, Advocate [neao_v, ]t',cjpUci--* nolocai" ioEijlr[,-' ]"'4. Two CD Cooies5. One Spare bopygbrl The Principar Re rt controrer^-c.u.m- 12rh Junior civir J-udge. Hyderabad.?. 3. One 9n" cc [CC ]to [to Sri L. prabhakar ]sri B. Ajay, Advocate [neao_v, ]t',cjpUci--* nolocai" ioEijlr[,-' ]"'4. Two CD Cooies5. One Spare bopygbr HIGH COURT

DATED: 3111212021

IyrE [STAi'6]O1 \/i.,+/t:)o15 [ttts]2{i22o\.cORDER'\iCRP.No.3097 of 2015ALLOWING TIIE CRP)L\-,vl