THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA

CIVIL REVISION PETITION NO.3702 OF 2024

ORDER:

This Civil Revision Petition is filed under Article 227 of the

Constitution of India, aggrieved by the order dated 02.09.2024 in I.A.No.169 of 2024 in O.S.No.1161 of 2022 by the Principal Junior Civil Judge – cum – Judicial Magistrate of First Class, Jayashankar, Bhupalpally (hereinafter referred to as “the trial

Court”)

2. The revision petitioner herein is the respondent/plaintiff and respondent is the petitioner/defendant before the trial Court. For convenience and clarity, the parties herein are referred to as

they were arrayed before the trial Court.

3. The case of the petitioner before the trial Court is that he has filed a petition under Order XXVI Rule 9 of the Code of Civil Procedure praying the Court to appoint an advocate commissioner to determine the survey number of the land (suit schedule property) which is in the possession and enjoyment of the respondent with the assistance of Assistant Director for Survey and Land Records, Warangal and with the help of tippon and village map of Buddaram. The suit was filed against him for permanent injunction in respect of Ac.02-20 guntas in survey

No.734/A/1, situated at Buddaram Village, Ghanpur Revenue Mandal. The respondent claimed to have purchased the suit land in survey No.734/A/1 from its erstwhile owner and obtained temporary injunction against him and on the basis of the said injunction order, the respondent has entered into possession of the land comprised in Sy.No.703 of Buddaram. It is the case of the petitioner that survey Nos.734 and 703 fall adjacent to each other and that survey No.703 measures Ac.11-18 guntas and that his late father’s name is recorded as owner in the revenue records while the respondent asserts that she has been in possession of the suit land comprising Sy.No.734 on the spot and the contention of the petitioner is that the respondent is in possession of land comprising in survey No.703 and thus, it has to be decided by a surveyor of the District Survey and Land Records by conducting survey on the suit land with the assistance of tippons and village map and submit a report to the Hon’ble Court. It is his case that the oral or documentary evidence cannot determine the dispute except by surveying the suit land.

4. The respondent/plaintiff filed counter and contended that the petition is neither maintainable in law or on facts and that the petitioner has filed the petition just to delay the proceedings and that there is a direction from the Hon’ble High Court of Telangana to dispose the suit within six months. It is his contention that the petitioner intentionally filed the above petition just to knock away the property. That in a suit for injunction the Hon’ble Court has to look into the possession over the suit schedule property as on the date of filing of the suit and a commissioner cannot be appointed to gather evidence in such cases. He further contended that the petitioner filed the present petition to gather and for collection of evidence only and that in a suit for injunction an advocate commissioner cannot be appointed at the threshold to gather evidence. It is further contended by her that she purchased the suit schedule property 12 years ago from the erstwhile owner lawfully and has been in continuous possession till date and also that the petition suffers from latches as it is filed only to delay and postpone the matter with one pretext or the other. Therefore, prayed to dismiss the petition.

5. Based on the above contentions, the trial Court has framed the following points for consideration:

“Whether the petitioner/defendant is entitled for the relief as prayed for?”

6. On hearing both sides, the trial Court has allowed the petition appointing an advocate commissioner to locate the suit schedule property and the alleged survey No.703 with the help of Surveyor of the District Survey and Land Records with the assistance of tippons and village map and file