THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CIVIL REVISION PETITION No. 2419 of 2024

ORDER:

This Civil Revision Petition is filed aggrieved by the order, dated 01.07.2024, passed in I.A.No.6 of 2024 in I.A.No.2 of 2023 in O.S.No.58 of 2023 by the learned Special Judge for Trial of Cases under SCs/STs-cum-III Additional District and Sessions Judge at Khammam.

2. O.S.No.58 of 2023 is filed by respondent/plaintiff against petitioner/defendant for declaration. During the pendency of the suit, I.A.No.2 of 2023 was filed by respondent/plaintiff herein to grant ad-interim exp-parte injunction order in favour of respondent/plaintiff restraining the petitioner/defendant herein from interfering with the peaceful possession of the respondent/plaintiff over the petition schedule property. I.A.No.6 of 2024 was filed by respondent/plaintiff to appoint an Advocate Commissioner to verify the boundaries by fixing them as the differences in boundaries from the petition schedule property and property of defendant. The trial Court allowed the application on 01.07.2024. Aggrieved by the order of the trial Court, the petitioner/defendant herein filed the present Civil Revision Petition.

3. Heard both sides. Perused the record.

4. Learned counsel for petitioner contended that the trial Court did not consider the crucial aspects that the respondent filed I.A.No.6 of 2024 to collect the evidence as he had no case in I.A.No.2 of 2023 and the schedule shown in I.A.No.2 of 2023 and I.A.No.6 of 2024 are different and respondent suffered a decree in O.S.No.95 of 2011 and it was confirmed in A.S.No.116 of 2013. Law does not permit to collect evidence by seeking appointment of Advocate Commissioner to localize and to do survey at the time of seeking injunction as the injunction petition is to be considered only basing on the material available on record. There is no document filed by the plaintiff for the plaint schedule and to the relief sought in the suit and there will be no record or any basis for the Advocate Commissioner or the Mandal Surveyor to verify the boundaries or fixing the boundaries as sought in I.A.No.6 of 2024.

Therefore, requested the Court to set aside the order of the trial Court.

5. O.S.No.58 of 2023 is filed to declare the respondent/plaintiff as absolute owner and possessor of the suit schedule property and for injunction. During the pendency of the suit, I.A.No.2 of 2023 was filed by respondent/plaintiff to grant ad-interim exp-parte injunction order in favour of respondent/plaintiff restraining the petitioner/defendant herein from interfering with the peaceful possession of the respondent/plaintiff over the petition schedule property, in fact the application is filed along with the suit. The contention of the petitioner is that the suit for injunction cannot be accepted and also contended that as it is at the initial stage, the said application is to be dismissed.

6. In the written statement filed by defendant, he stated that he constructed the compound wall initially and two A.C. Sheet Roof Rooms and the two roomed house was allotted with H.No.4-1-641 (new) corresponding to its old H.No.4-1-175/10 (old) and the same was also assessed to Property Tax in his name by Khanapuram Haveli Grampanchayat. When plaintiff and his wife tried to interfere with the peaceful possession and enjoyment of the defendant’s house and site, he filed O.S.No.95 of 2011 for perpetual injunction. The trial Court after considering the arguments decreed the suit on 22.11.2013. Against the said judgment, plaintiff and his wife filed A.S.No.116 of 2013 and the same was dismissed on 31.12.2019 confirming the judgment of the trial Court.

7. I.A.No.6 of 2024 was filed by respondent/plaintiff to appoint an Advocate Commissioner. He stated that defendant is making hectic efforts to interfere with his peaceful possession and enjoyment and as there was differences in boundaries of the suit schedule property and the property of the defendant which mentioned in Doc.No.4113 of 2