CRP/2256/2018 of PILLI BHANU MURTHY Vs K KORUKONDA (DIED) on 31 December 2021

ORDER:-

This civil revision petition is filed against the order passed in I.A.No.433 of 2017 in O.S.No.666 of 2010 on the file of I Additional Junior Civil Judge, Tanuku, dated 29.01.2018, wherein the application sought for appointment of fresh Advocate Commissioner at the instance of the petitioner was dismissed.

2. Heard the learned counsel for the petitioner and the learned counsel for the respondents.

3. The petitioner herein is the petitioner in the IA and the 2[nd] defendant in the suit before the court below. The respondents herein are the respondents in the IA and the plaintiffs in the suit except the 5[th] respondent, who is the 1[st] defendant in the suit. The learned counsel for the petitioner submitted that the respondents 1 to 4 initiated action in O.S.No.666 of 2010 before the court below seeking for declaration of title and grant of injunction from interfering with the possession and enjoyment of the plaint schedule property. At the instance of the plaintiffs, an Advocate Commissioner was appointed earlier in I.A.No.2757 of 2010 wherein the Advocate Commissioner executed the warrant and filed the report for which the petitioner herein filed the objections mentioned hereunder:

“1. The plan drawn by the Advocate Commissioner is not correct.

2. The learned Advocate Commissioner could not and did not identify the properties of the defendant and on Dwarampudi Venkatareddy.

3. The learned Advocate Commissioner did not identify the petitioners’ property with his link documents.

4. The learned Advocate Commissioner could not and did not measure the properties of the petitioner and neighbouring owners.”

4. However, the trial was proceeded and the Advocate Commissioner was examined as CW2 and the Mandal Surveyor was examined as CW1. Now that the suit is at the stage of arguments, the counsel for the petitioner insists to appoint the 2[nd] Advocate Commissioner to go into the objections raised by the petitioners or else to redirect the earlier Advocate Commissioner to localise the properties of each parties with reference to their documents. The trial court has dismissed the above said IA as already the earlier Advocate Commissioner was examined and also the Mandal Surveyor was also examined and the defendants has got the opportunity to examine the said persons. The trial court rightly rejected the above said IA.

5. This court also finds that no prejudice would cause for the 2[nd] defendant as he can rely upon the objections raised already and he can take the advantage on the strength of the lacunae pointed out in the deposition of the above said persons for the sake of his defence in the main suit itself. Since the suit is contested on the above said preponderance of probabilities, the Advocate Commissioner’s report may help absolutely in the form of collection of evidence on behalf of either of the parties.

6. In view of the same, the Civil Revision Petition is dismissed. It is always open for the parties to put forth their case in the main suit and the objections of the petitioner herein can also be raised at the stage of arguments which can be considered in the main suit on merits as per law.

As a sequel, the miscellaneous applications pending, if any, shall stand disposed of. There shall be no order as to costs.

December 31, 2021 PKR/LMV

______________________________

JUSTICE B.KRISHNA MOHAN

LMV

HON’BLE SRI JUSTICE B.KRISHNA MOHAN

WRIT PETITION No.24968 of 2020

December 27, 2021