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Judgment
Heard Mr. S. Surender Reddy, learned counsel for the petitioner and Ms. S. Mrudula, learned counsel for respondent Nos.1 and 2, and perused the material on record.
Petitioner instituted a suit for perpetual injunction in O.S. No.23 of 2003 in the Court of learned Principal Senior Civil Judge, Hanamkonda (trial Court), against defendants in respect of the land admeasuring Acs.4-04 guntas in Survey Nos.558/A and 560 of Rampur Village, Dharmasagar Mandal, Warangal District (now Hanamkonda District) i.e., suit schedule property. The suit was dismissed by judgment dated 10.02.2023. Aggrieved thereby, petitioner preferred appeal in A.S. No.16 of 2023 before the Chairperson, Land Reforms Appellate Tribunal - cum - I Addl. District Judge, Hanumakonda (appellate Court). During the pendency of the appeal, petitioner filed I.A. No.101 of 2024 in A.S. No.16 of 2023 under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure 1908 (CPC) seeking appointment of Advocate Commissioner to note down the physical features of the suit schedule property. The said application was dismissed by order dated 24.02.2026 which is assailed in this revision.
For the sake of convenience, the parties herein are referred to as in the suit in O.S. No.23 of 2003.
It is averred by the plaintiff in I.A. No.101 of 2024 that the defendant No.1 contested the suit tooth and nail and took objection that there is ambiguity in the suit schedule property that it is a vacant land. The plaintiff sold the suit schedule property under Ex.B4 i.e., registered sale deed bearing document No.3345 of 2016 dated 26.08.2016 to one Mr. Vangari Balaraju and Mr. Banoth Ravi. They laid roads, drainages, erected electric poles and constructed structures on the suit schedule property. These facts were not reflected in the judgment passed by the trial Court. The defendant No.1 confused the trial Court regarding the 100 feet road leading from Hyderabad to Hanamkonda, resulting in dismissal of suit. Hence, in order to ascertain the nature of property and its physical features, it is necessary to appoint Advocate Commissioner.
The defendant No.1 filed counter in I.A. No.101 of 2024 in A.S. No.16 of 2023 inter alia stating that plaintiff sold the suit property illegally in favour of one Mr. Vangari Balaraju and Mr. Banoth Ravi under registered sale deed bearing document No.3345 of 2016 dated 26.08.2016 during the pendency of the suit. The said sale is hit by doctrine of lis pendens under Section 52 of the Transfer of Property Act 1882. The said persons have illegally entered into Development Agreement with M/s. Sena Developers, a partnership firm to develop the suit property by obtaining layout from Kakatiya Urban Development Authority (KUDA). The defendant No.1 filed W.P. No.14761 of 2019 before this Court seeking cancellation of layout issued in favour of M/s. Sena Developers. This Court granted interim suspension of the layout and subsequently, KUDA cancelled the layout by issuing show-cause notice to M/s. Sena Developers.
It is stated that plaintiff along with the purchasers filed joint application under Order XXII Rule 10 of CPC to permit them to continue the above suit in their name as assignees of the suit property. The said application was also dismissed by the trial Court. Even after cancellation of layout, the purchasers started laying roads, electric poles etc. The suit in O.S. No.23 of 2003 was dismissed on merits. Plaintiff also filed application in A.S. No.16 of 2003 seeking suspension of judgment in O.S. No.23 of 2003 dated 10.02.2023. However, no order was passed by the appellate Court in the said application. In such circumstances, the application filed for appointment of Advocate Commissioner would not serve any purpose and further lead to legal complications and devoid of merits and prayed to dismiss the same.
The appellate Court having considered the case of the plaintiff and defendant No.1 dismissed the application. The Appellate Court relied on the judgments wherein it was held that Advocate Commissioner cannot be appointed for collecting evidence. The appellate Court has also pointed out that the plaintiff himself admitted that the boundaries shown in the plaint are not tallying with the boundaries shown in the caveat petition and the boundaries shown in the caveat are not tallying with the boundaries mentioned under Exs.A1, B1 and B4. The plaintiff did not disclose the existing physical features of the suit property which are not mentioned in the judgment. It will be of no use for the petitioner even if Advocate Commissioner is appointed, because in the absence of record of the existing physical features of the existing features of his property, it would be difficult for the petitioner to prove changes to it, even in the event of making changes to it. Thus, by holding that in the absence of specific boundaries and specific physical features of the suit property, it is not possible for the Advocate Commissioner to record physical features of the suit property, even in case of allowing the petition, the application was dismissed.
Learned counsel for the petitioner - plaintiff submitted that application in I.A. No.101 of 2024 was filed for noting the physical features of the suit property and not for collection of evidence. It cannot be said that application under Order XXVI Rule 9 of CPC is per se not maintainable. It depends on the specific facts of the particular case. The defendant No.1 pleaded that suit property is vacant land. In order to prove that land is not vacant and developed with amenities like roads, electric poles, drainages etc. the appointment of Advocate Commissioner is necessary.
Per Contra, learned counsel for respondent No.1 - defendant No.1 submitted that similar application was filed by the plaintiff in I.A. No.579 of 2022 in O.S. No.23 of 2003 before the trial Court during the pendency of the suit and the application was dismissed by judgment dated 17.08.2022. The copy of the same is placed on record. While adverting to the facts of the case and contentions raised by the parties, the trial Court held that the suit was coming for arguments and at such time, the application seeking appointment of Advocate Commissioner was filed with an intention to delay the disposal of the suit. In the suit for injunction, possession as on date of filing of suit is only criteria and subsequent developments over the suit property cannot be taken into consideration. The application is an afterthought to obstruct the disposal of the suit.
It is surprising to note that neither the plaintiff nor defendant No.1 brought to the notice of the appellate Court about dismissal of similar application before the trial Court in I.A. No.579 of 2022. The plaintiff being unsuccessful before the trial Court filed similar application for appointment for Advocate Commissioner before the appellate Court, which cannot be permitted, unless there is change in circumstances. No doubt that the trial Court in I.A. No.579 of 2022 in O.S. No.23 of 2003 did not go into the merits and the application was dismissed on the ground of interest of justice. It is pertinent to note that the dismissal order attained finality and the same was not challenged by the plaintiff before the appellate Court or this Court. Without challenging the same, plaintiff filed similar application before the appellate Court.
Be that as it may, it is settled principle of law, the application seeking appointment of Advocate Commissioner cannot be filed for collection of evidence. The contention of defendant No.1 that during the pendency of suit before the trial Court, the plaintiff sold the suit property and the purchasers made improvements over the suit property by developing it into layout which came to be cancelled. In the suit for perpetual injunction, the status of land as on date of filing of suit is relevant for deciding the suit and not subsequent events and developments over the suit property. In the opinion of this Court, the facts of the case does not warrant the appointment of Advocate Commissioner. Though, the appellate Court has gone into the merits and dismissed the application, this Court is of the opinion that discussion on merits was not necessary. In any case, there is no ground by which this Court can take a different opinion to the one taken by the appellate Court.
In view of the above, there are no merits in the revision application. Accordingly, the Civil Revision Application is dismissed. There shall be no order as to costs.
As a sequel thereto, miscellaneous applications, if any, pending in the civil revision petition stand closed.