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2022 Supreme(AP) 466

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
B.S. BHANUMATHI, J.
Madaka Rama Mohan Rao – Appellant
Versus
Gonthina Saraswathi – Respondent
C.R.P. Nos. 677, 837, 840, 846 of 2021
Decided On : 09-11-2022

Advocates:
Advocate Appeared:
For the Appellant : Mangena Sree Rama Rao.
For the Respondent: T.V.S. Prabhakara Rao.

Headnote:

Constitution of India, 1950 - Article 227 –Civil Procedure Code, 1973 - Order XXVI Rule 9(1), Order XXVI Rule 18, Order VII Rule 14(2), Order XVIII Rule 17 CPC, Order XXVI Rule 9, Section 75, 151 - Parties to appear before Commissioner - Courts to try all civil suits unless barred - Provides for the power of superintendence over all Courts and Tribunals throughout the territory by the High Court - Whether there is any necessity to appoint a Commissioner or not –Held, This Court does not see any reason to interfere with order impugned in revision since it has given valid reasons for dismissing petition - There is no need to pass any orders in other two revision petitions and filed challenging order of trial Court refusing to reopen suit and recall petitioner and they automatically fail, and are liable for dismissal - Petitions dismissed.

ORDER :

1. All these revisions, under Article 227 of the Constitution of India, are filed challenging the interlocutory orders, dated 20.04.2021, dismissing I.A. Nos. 567 of 2019, 564 of 2019, 565 of 2019 and 566 of 2019 in O.S. No. 290 of 2017 on the file of the Court of Principal Senior Civil Judge, at Gajuwaka.

2. I.A. No. 567 of 2019 is filed under XXVI Rule 9 read with Section 151 CPC to appoint an advocate commissioner with the help of Mandal Surveyor to note down the physical features, measure the properties of the petitioner and the respondents; I.A. No. 564 of 2019 is filed under Section 151 CPC to reopen the matter to adduce further evidence by recalling the plaintiff; I.A. No. 565 of 2019 is filed under Order XVIII Rule 17 CPC to recall the petitioner by reopening the matter to adduce further evidence and I.A. No. 566 of 2019 is filed under Order VII Rule 14(2) read with Section 151 CPC to grant leave to receive and mark the registered gift settlement deed, dated 02.06.2015.

3. Heard Sri Mangena Sree Rama Rao, learned counsel appearing for the petitioner/petitioner/plaintiff and Sri T.V.S. Prahakara Rao, learned counsel appearing for respondents/respondents/defendants.

4. The issue involved in all these revisions are inter-connected and the parties being the same, all these revision petitions are heard together and are being taken up for disposal.

5. The facts leading to filing of these petitions, in brief, are as follows:

    (a) The plaintiff filed the suit against the defendants seeking the relief of declaration of title, recovery of possession, mandatory injunction and for other reliefs. The plaint schedule property is of an extent of 24.2 square yards of site in Sy. No. 54/1 (old), new Survey No. 118/9 of Srinagar area of Chitgantiyada village, Gajuwaka Mandal. The plaintiff and her mother, who is the donor of the property, were examined as PWs. 1 and 2 and the matter is posted to 04.09.2019 for defendants’ evidence. However, instead of filing the evidence affidavit, the defendants filed a memo to close their evidence as exhibits B1 and B2 were already marked. Hence, the suit is posted to 11.09.2019 for arguments. The defendants approached the Court with unclean hands by suppressing the real facts. After filing of the suit, the enquiries made by the plaintiff revealed that the 1st defendant executed a registered gift settlement deed dated 02.06.2015, in favour of the 2nd defendant bearing document No. 1333/2015, by mentioning wrong boundaries contrary to the boundaries mentioned in exhibit B1. As per the gift settlement deed, the eastern boundary is mentioned as “Madaka Saraswathi Gariche Viduvabadina Road.” In fact, the mother of the plaintiff never left any land for the purpose of road. Originally, there is a road towards northern side of the property of the mother of the plaintiff and the property of the plaintiff. As such, there is no necessity either for the plaintiff or her mother to leave the land for formation of the road. By showing the eastern boundary as a road under the guise of registered gift settlement deed, the defendants constructed building illegally by encroaching the property of the plaintiff. In fact, the defendants purchased only an extent of 240 square yards covered by exhibit B1, whereas on ground, they encroached part of the property of the plaintiff covered by exhibit A3. Moreover, to elicit the real truth quite intentionally the defendants did not enter into the witness box. As such, in order to establish his case, it has become necessary for the plaintiff to seek appointment of an advocate commissioner with the help of a Mandal Surveyor to note down the physical features, measure the properties of the plaintiff and the defendants so also the disputed property. The defendants are intentionally not coming forward to depose real facts. Hence, I.A. No. 567 of 2019 was filed.

(b) In order to place the aforesaid facts, two applications in I.A. Nos. 564 of 2019 and I.A. No. 565 of 2019 were filed requ

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