THE HON’BLE SMT. JUSTICE RENUKA YARA CIVIL REVISION PETITION No.3665 of 2024

ORDER:

This Civil Revision Petition arises out of Order, dated

19.09.2024, in I.A.No.840 of 2024 (wrongly typed as I.A.No.840 of 2022) in O.S.No.78 of 2014, on the file of the Court of the learned Principal Junior Civil Judge, Medak (for short ‘the Trial Court’), whereby the application, filed by the petitioner under Order 26, Rule 9 of CPC for appointment of Advocate Commissioner to identify the location of the suit schedule property and whether the house of the respondent/defendant is located in the suit survey number or not, was dismissed.

2. Heard Sri J. Teja Varma, learned counsel for the revision petitioner and Sri M.M.Ali, learned counsel for the respondent. Perused the record.

Facts of the case:

3. The brief facts of the case are that the petitioner/plaintiff filed the suit for declaration and recovery of possession of suit schedule property consisting of land in Sy.No.72/E to an extent of Ac.0.07 Gts., which is illegally occupied by the respondent/defendant and a house is constructed. The respondent denied the survey number and boundaries as shown by the petitioner to the plaint schedule. Therefore, petition is filed to appoint Advocate Commissioner to identify the suit schedule property and to ascertain whether the house of the defendant is located in suit schedule property or not.

4. The respondent pleaded that the land in Sy.No.72 admeasuring Ac.5.39 Gts. to which C. Narsamma, C. Narayana, C. Ramulu and C. Lingam are the owners and the land of C. Narsamma and C. Narayana are on the northern side of suit survey number; Ramulu and Lingam have land on the southern side of suit survey number. After the death of C. Lingam, his widow by name Siddamma and son Dayakar have executed an Agreement of Sale dated 05.01.2006 and registered two Sale Deeds in favour of the respondent and he became owner of land in Sy.No.72 to an extent Ac.0.09 Gts. The respondent had constructed a house and sheds in his land. Thereafter, the petitioner got executed Rectification Deeds and on said basis, filed a false case against the respondent. Further, the case of the respondent is that there are no sub-division numbers as there is no supplementary sethwar existing to show the sub-division of the property. Lastly, the respondent contended that the petitioner is not aware of the location of his property, seeks to collect evidence through Court and therefore, opposed the petition.

5. Having examined the rival contentions, the Trial Court had dismissed the petition on the ground that the burden lies on the petitioner to prove his case with respect to existence of property within specified boundaries and he cannot rely on the weakness on the case of respondent, nor can he collect any evidence from the court.

Grounds of Revision:

6. In grounds of revision, it is pleaded that the petitioner is claiming his property to be situated in Sy.No.72/E to an extent of Ac.1.20 Gts. and in the same property, the respondent has occupied to an extent of Ac.0.07 Gts., but denied the same in his cross examination and therefore, it is necessary to appoint an Advocate Commissioner to identify the location of house of the respondent in the suit schedule property. The case of the respondent is that he purchased land to an extent of Ac.0.09 Gts. in Sy.No.72 wherein, he constructed a house and two sheds. Both the parties are claiming the same land in the same survey number. Therefore, unless an Advocate Commissioner is appointed, said issue cannot be resolved.

7. In that context, the learned counsel for revision petitioner relied upon the judgment of the Hon’ble Supreme Court of India in Subhaga and others v. Shobha and others, (2006) 5 SCC 466, wherein it is held as follows:

“6. …. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the bo