IN THE HIGH COURT FOR THE STATE OF TELANGANA

***

CIVIL REVISION PETITION No.562 of 2020

Between:

1. Smt. Sughra Begum W/o Late Yusuf Khan

and 4 others

… Petitioners

And

1. Md. Ismail Khan S/o Late Yusuf Khan and 9 others

… Respondents

Date of Judgment pronounced on : 09.04.2021

THE HON’BLE SRI JUSTICE CHALLA KODANDA RAM

1. Whether Reporters of Local newspapers : Yes / No

May be allowed to see the judgments?

2. Whether the copies of judgment may be marked : Yes / No

to Law Reporters/Journals:

3. Whether The Lordship wishes to see the fair copy : Yes / No

Of the Judgment?

____________________

CHALLA KODANDA RAM, J

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THE HON’BLE SRI JUSTICE CHALLA KODANDA RAM

CIVIL REVISION PETITION No.562 of 2020

% 09.04.2021

# Smt.Sughra Begum W/o Late Yusuf Khan

and 4 others

… Petitioners

Versus

1. 1. Md. Ismail Khan S/o Late Yusuf Khan and 9 others

... Respondents

< GIST:

> HEAD NOTE:

! Counsel for the Petitioners : Mohd. Veqar Hussain

^ Counsel for the Respondent No.8 : G.P. for Arbitration

Counsel for respondents 1 to 7, 9, 10 : Sri Janardhan Reddy Kotha

? Cases referred:

1. (2008) 8 SCC 671

2. 2011 SCC OnLine Mad 990

3. 2011 SCC OnLine AP 218

4. 2006 SCC OnLine AP 319

5. 2005 SCC OnLine AP 456

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THE HON’ BLE SRI JUSTICE CHALLA KODANDA RAM

CIVIL REVISION PETITION No.562 of 2020

ORDER:

The order dated 17.02.2020 passed by the learned II Additional

District and Sessions Judge, Ranga Reddy District, at L.B.Nagar, in

I.A.No.182 of 2020 in O.S.No.389 of 2012, is challenged before this

Court. By the impugned order, the trial Court dismissed the

application filed by the petitioners/plaintiffs seeking appointment of

Advocate Commissioner for noting down the physical features and

topography of the suit schedule property.

2. Heard the learned counsel for the petitioners, and the learned

counsel for the respondents.

3. The suit was filed by the petitioners/plaintiffs for partition,

separate possession and cancellation of Sale Deed and rectification of

Pahani Nakles, against the respondents/defendants. The petitioners

filed I.A.No.182 of 2020 seek ing appointment of advocate

commissioner for noting down the physical features and topography of

the suit schedule property. In the affidavit filed in support of the

I.A.No.182 of 2020, the petitioners stated in paragraphs 2, 3 and 4 as

under:

“2. It is submitted that, we have filed the above suit for

partition, separate possession and cancellation of Sale Deed and

rectification of Pahani Nakles, against the

Respondents/Defendants. The evidence of either side is closed

and the matter is at arguments stage and at this stage as the

earlier counsel on record for the plaintiff was not co-operating

with the plaintiffs and was acting against the interest of the

plaintiffs as such the petitioners/plaintiffs were constrained to

file a petition in I.A.No.949/2019 in O.S.No.389 of 2012 to revoke

the Vakalat of Mr. Maaturi Kishan Rao, permitting the

petitioners/plaintiffs to engage another advocate for continuing

further proceedings in the main suit which was allowed by this

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Hon’ ble Court. However the earlier counsel despite of repeated

request of the plaintiff, failed to handover the office bundle of the

above case as such the petitioners/plaintiffs were constrained to

file C.A. for certified copies of the documetns.

3. It is submitted that, on verification it is revealed to our

present counsel on record that the Respondent/Defendant No.4

in his cross examination denied that the crimination of our father

and forefathers are kept in the suit schedule property,

particularly when their graves are existing in the suit schedule

property.

4. It is further submitted that the Respondent/Defendant No.4

also disputed the boundaries of the suit schedule properties as

such in view of the above submissions it is just and necessary

that the boundaries of the suit schedule property and the correct

topography of the suit schedule property has to come before this

Hon’ ble Court for proper adjudication of the above suit.”

4. The respondents/defendants filed counter affidavit in I.A.No.182

of 2019 denying the allegations of the petitioners. It is stated in

paragraphs 4 and 5 of the counter affidavit as under:

4. In reply to Para 2 of the affidavit in support of the petition

filed under Section 151 CPC, it is submitted that the entire

allegations leveled in para under reply are false, baseless and

incorrect. It is submitted that the petitioners/plaintiffs have filed

a false and speculative suit for partition and separate possession

in respect of the suit schedule ‘A’, ‘B’ & ‘C’ properties situated at

Sanghiguda Village, Shamshabad Mandal, RR District against me

and other respondents/defendants, wherein, I have filed my

detailed written statement denying the allegations leveled in the

plaint, in the suit, the petitioner/plaintiff No.1 has been examined

as PW-1 and petitioner/plaintiff No.3 has been examined as PW-2

and I have been examined as DW1, the case is coming up for

arguments, at this stage, the petitioners/plantiffs have filed this

petition to reopen the case for appointing an Advocate

Commissioner to note down the physical features and

topography of the suit schedule properties. It is pertinent to

mention here that the suit is for partition and separate

possession, it is a primary duty of the petitioner/plaintiffs to

prove that they are having share in the suit schedule properties

and they are in possession of the suit schedule property, as

such, question of reopen the case for appointing an Advocate

commissioner to note down the physical features and

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topography of the suit schedule properties does not arise and

moreover, PW-1 categorically admitted that “my husband dead

body was cremated at Sanghiguda Graveyard place. It is true

that there was no cremation of our ancestors in suit schedule

properties”, this admission itself is sufficient to prove that there

was no graveyard in the suit schedule properties and in a suit for

partition and separate possession, the physical features and

topography of the suit schedule properties is not at all relevant

for adjudication of the case, the petition is without any merits,

the same is liable to be dismissed.

5. In reply to Paras 3 & 4 of the affidavit in support of the

petition filed under Section 151 CPC, it is submitted that the

entire allegations leveled in paras under reply are false, baseless

and incorrect. It is submitted that it is a duty of the

petitioners/plaintiffs to prove that the suit schedule properties

are belongs to ancestral properties and they are entitled share in

the suit schedule properties, instead of proving their share, the

petitioners/plaintiffs filed this petition to reopen the case for

appointing an Advocate Commissioner to note down the

physical features and topography of the suit schedule properties

is not maintainable and more over it is a duty of the

petitioners/plaintiffs to prove the boundaries of the suit schedule

property. The petitioners/plaintiffs instead of arguing the case,

filed this application only to drag on the matter, as such the

petition is without any merits, the same is liable to be

dismissed.”

5. The trial Court dismissed the I.A.No.182 of 2020 on two

grounds; (1) there are photographs evidencing existence of tombs,

and (2) the correctness of boundaries is not relevant for the purpose

of deciding a partition suit. The trial Court, in paragraphs 06 and 07 of

the impugned order observed as under:

“06. The perusal of the record goes to show that photos of the

suit schedule property are marked as Ex.A18, and by observing

the same one can found existence of tombs. In such

circumstances I am of the view that there is no necessity to

appoint an advocate commissioner in order to note down the

existence of tombs.

07. As rightly argued by the defendants counsel the plaintiffs

have to prove their right to claim a share over the suit property.

Existence of tombs is a secondary aspect. It is for the plaintiffs

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to prove the correctness of the boundaries and they cannot

collect evidence with the help of advocate commissioner. Even

if advocate commissioner records the owners of the boundaries

to the suit property still it will be in dispute. Taking all these

aspects into consideration I am of the view that the petitions are

liable for dismissal.”

6. Mr. Muhammad Veqar Hussain, learned counsel for the

petitioners, assailed the impugned order as unsustainable by relying

on the following judgments:

(i) Haryana Waqf Board v. Shanti Sarup

1

(ii) M. Nachiappan v. A. Nachiappan

2

(iii) Shaik Zareena Kasam v. Patan Sadab Khan

3

(iv) Dammalapari Satyanarayana v. Datla Venkata Ramabhadra

Raju @DVR Raju

4

(iv) Koduru Sesha Reddy v. Gottigundala Venkata Rami Reddy

5

7. Learned counsel for the respondents submits that the trial Court

had rightly dismissed the I.A.No.182 of 2020 and the same does not

call for interference by this Court.

8. In Haryana Waqf Board (1 supra), the Punjab Waqf Board

was the plaintiff, filed suit for injunction and declaration of title. The

High Court, on the ground of concurrent findings of fact arrived at by

both the Courts below, summarily dismissed the second appeal. When

the matter was taken to the Supreme Court, the apex Court observed

that the respondents have never taken any specific denial with respect

to unauthorized possession in respect of suit land by them as per

paragraph 3 of the plaint, and therefore the High Court ought to have

granted the plea of appointment of Local Commissioner for

demarcation of suit land.

1

 (2008) 8 SCC 671 

2

 2011 SCC OnLine Mad 990 

3

 2011 SCC OnLine AP 218 

4

 2006 SCC OnLine AP 319 

5

 2005 SCC OnLine AP 456 

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9. In Nachiappan (2 supra) , the grievance of the revision

petitioners therein was that the earlier application I.A.No.83 of 2009

filed seeking appointment of advocate commissioner for proving the

plaintiffs possession was dismissed; however, a second application

I.A.No.447 of 2009 for appointment of advocate commissioner was

allowed. When challenged before the High Court, the High Court while

dismissing the revision petition, confirmed the order in I.A.No.447 of

2009 observing that no prejudice would be caused to the interest of

revision petitioners.

10. In Shaik Zareena Kasam (3 supra) , the trial Court dismissed

the application filed for appointment of advocate commissioner to

verify the existence of rice mill in the suit schedule property, on the

ground of delay. This Court allowed the civil revision petition by

observing that if there are laches on the part of one party in filing an

application belatedly, reasonable costs could be imposed and it is not

desirable to dismiss the application merely on the ground of delay.

11. In Dammalapari Satyanarayana (4 supra) , the trial Court

allowed the application I.A.No.201 of 2005 filed by the

respondents/defendants seeking appointment of advocate

commissioner for localizing the suit schedule property on the ground

that initially the petitioners purchased the property in Survey

Nos.339/5 and 6, and later the sale deeds were rectified by

mentioning the Survey numbers as 339/9 and 10 and therefore to

resolve the uncertainty the respondents filed the application. When

the same was challenged before this Court, this Court set aside the

order under revision thereby dismissed the I.A.No.201 of 2005 by

observing that the admissibility or otherwise of the so-called sale

deeds would be at the stage of recording evidence and therefore

localizing or demarcation of suit schedule property by calling for a

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report from an advocate commissioner by basing on title deeds even

before the recording of evidence may lead to a stage where the whole

trial would revolve around such report.

12. In Koduru Sesha Reddy (5 supra) , the application I.A.No.146

of 2001 filed by the plaintiffs in O.S.No.23 of 2001 seeking

appointment of advocate commission er for noting down the physical

features was ordered ex parte. The defendants filed I.A.No.396 of

2004 seeking appointment of another advocate commissioner on the

ground that appointment of earlier advocate commissioner was

through an ex parte order and the plaintiffs mislead the advocate

commissioner at the time of noting down of physical features.

13. A perusal of the above judgments relied upon by the learned

counsel for the petitioners would show that the factual matrix of those

cases are different from the present case on hand, and the orders

passed in the said cases are based on the peculiar facts of the

respective cases, and the same are not applicable to the facts of the

present case.

14. In the present case on hand, the petitioners/plaintiffs filed the

application I.A.No.182 of 2019 seeking appointment of advocate

commissioner by taking a plea in his affidavit at paragraph No.3

extracted above stating that defendant No.4 has denied the cremation

of their father and forefathers in the suit schedule property, more

particularly when the graves are existing in the suit schedule property.

It is also averred that defendant No.4 has disputed the boundaries of

the suit schedule property.

15. The trial Court had considered the plea taken by the plaintiffs

and in paragraph Nos.06 and 07 of the impugned order, observed that

when the photographs reveal the existence of tombs, there is no need

for appointing an advocate commissioner to note down the existence

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of tombs; and that the existence of tombs is a secondary aspect and

that it is for the plaintiffs to prove their case with respect to

correctness of boundaries and the plaintiffs cannot collect evidence

with the help of advocate commissioner.

16. At the outset, on a perusal of the plaint, it may be noted that

the suit was filed seeking partition of an agricultural land over a total

extent of about Ac.24-32 guntas, comprising of Ac.13-30 guntas under

Schedule-A; and Ac.8-00 guntas under Schedule-B; and Ac.3-02

guntas under Schedule-C. All the suit schedule properties are

agricultural lands in various survey numbers located in Sangiguda

Village, Shamshabad Mandal, Ranga Reddy District. Even assuming

that the suit is ultimately allowed, the division of property would be

required to be worked out by metes and bounds at the time of passing

of final decree and not at the stage of suit being considered to answer

the question as to whether the partition is to be granted and, if so,

what are the shares that are to be allocated to the respective parties,

and if there are any exclusions to be made with respect to the

property which are alleged to have been acquired by the third parties

through one or the other stakeholders.

17. Having considered the respective submissions, this Court does

not find any merit in the civil revision petition.

18. Accordingly, the civil revision petition is dismissed. No costs.

Miscellaneous petitions, if any pending, shall also stand dismissed.

_______________________

CHALLA KODANDA RAM, J

09

th

April, 2021

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THE HON’ BLE SRI JUSTICE CHALLA KODANDA RAM

CIVIL REVISION PETITION No.562 of 2020

09

th

April, 2021

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