IMPORTANT POINT
Legal representatives cannot raise new pleas not raised by the deceased, and the appointment of an advocate commissioner is at the discretion of the court.

ORDER :

Aggrieved by the order dated 14.09.2018 (hereinafter will be referred as ‘impugned order’) in E.A.No.39 of 2018 in E.P.No.10 of 2017 in R.C.No.269 of 2011 passed by learned III Additional Rent Controller, City Small Causes Court, Hyderabad, the petitioners/JDRs filed the present Civil Revision Petition.

2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned III Additional Rent Controller, City Small Causes Court, Hyderabad.

3. The brief facts of the case as can be seen from the record available before this Court are that the respondent/decree holder filed R.C.No.269 of 2011 on the file of learned III Additional Rent Controller, Hyderabad to evict his tenant by name Gorakhnath but the said tenant was disputing the relationship of landlord and tenant among them. The respondent/decree holder filed an application under Section 11 (1) of the A.P. Buildings (Lease, Rent and Eviction) Control Act with a prayer to direct the respondent to pay or deposit the arrears of rent from September, 2007 to May, 2011 @ Rs.450/- per month and the said petition was dismissed. Aggrieved by the same, the respondent/decree holder filed CRP No.2031 of 2013, wherein the order passed by the learned Rent Controller was set aside and directed the tenant to deposit the arrears of rent. The Respondent/decree holder obtained eviction order on 29.08.2017 directing the tenant to vacate the petition schedule premises and subsequently E.P.No.10 of 2017 was also filed. In the meanwhile, the tenant died on 15.12.2017 and his legal representatives were brought on record. The legal representatives of said Goraknath (tenant) i.e., the revision petitioners herein have filed Special Leave Petition (Civil) Diary NJos.35813 of 2018 challenging the order dated 03.02.2017 in CRP No.2031 of 2013 and the Honourable Apex Court was pleased to direct the parties to maintain status quo. However, the said Special Leave Petition was ultimately dismissed.

4. One of the legal representatives of Goraknath by name K. Radhika filed E.A.No.39 of 2018 in E.P.No.10 of 2017 under Order XXVI Rule 9 and 18-A read with Section 151 of the Code of Civil Procedure to appoint Advocate Commissioner to measure the extent of property in H.No.4-8-8/1 along with the outer boundaries to ascertain whether the extent is 350 square yards as claimed by them or 40.5 square yards as claimed by the respondent/decree holder. In the said petition it was contended that the EP schedule property does not match to the property in existence in house bearing No.4-8-8/1 nor the boundaries thereto are matching on the ground. It is further contended that the property on ground comprises of 350 square yards covered by the sale deed dated 17.02.1950 and whereas the respondent/decree holder is claiming 40.5 square yards quite in the middle of the property which belongs to them. Thus, the revision petitioners prayed to appoint an Advocate Commissioner to resolve the dispute by ascertaining the property as to whether it is 350 square yards or 40.5 square yards.

5. To the above said petition, the respondent/decree holder filed counter by contending that his father died in the year 1948 and thus, the question of his father executing sale deed in favour of Goraknath on 17.02.1950 does not arise and thereby the said sale deed is false, forged and fabricated. It was further contended that Goraknath has not disputed about the boundaries and the extent of property either in the RC proceedings or EP proceedings and once the tenant has not disputed the boundaries and extent, his legal heirs are not expected to raise such plea independently. It was further contended that there is an injunction order against the deceased V. Goraknath and his son or any other person claiming through them from interfering or disturbing the possession of the respondent over an extent of 1000 square yards as per orders dated 16.08.2011 in I.A.No.447 of 2011 in O.S.No.1723 of 2011 on the file of le