M.S. Ramachandra Rao, J.:— These two Appeals arise between the same parties out of the same suit, and therefore, they are being disposed of by this Common Order.
2. The appellants in both these Appeals are plaintiffs in O.S. No. 497 of 2017 on the file of the II Additional District Judge, Ranga Reddy District, at L.B. Nagar.
The plea of the appellants/plaintiffs in the plaint
3. The appellants filed the above suit against the respondents for declaration of their title to the plaint schedule property and for decree to be passed in their favour for recovery of possession if the respondents are found to be in possession of the plaint schedule property.
4. The plaint schedule property is an extent of Ac.0.9 gts. in Survey No. 85/1 of Manikonda Jagir Village, Rajendranagar Mandal, Ranga Reddy District.
5. According to the appellants, Late P. Vishnuvardhan Rao, husband of the 1 appellant and father of appellants 2 and 3, purchased the said property under a registered Sale Deed bearing Document No. 7108/97 dt.13.10.1997 (Ex. P.2) from the original owner S. Jangaiah and others who were the pattadars of the land. They contended that the said Sri. P. Vishnuvardhan Rao died on 25.12.2010, and they inherited the property on his death.
6. According to them, the property was agricultural land at the time of its acquisition and its boundaries in 1997 were : North : Land in Survey No. 85/2 of Agamaiah; South : Land in Survey No. 86 of Rukmaiah; East - Land of Shivkumar; and West : Neighbouring land.
7. They also contended that mutation of the said land was made under Ex. P.3 dt.30.10.1998 in proceedings No. E/3907/98 of the Mandal Revenue Officer, Rajendranagar and that P. Vishnuvardhan Rao was issued Ex. P.4-Pattadar Pass Book and Ex. P.5-Title Deed. They contended that from 1998-99 onwards till 2006-07 in the Pahani Patriks, the land stood in the name of Sri. Jangaiah as owner, and subsequently P. Vishnuvardhan Rao 's name was incorporated therein.
8. According to them, the respondents did not claim any right in respect of land in Survey No. 85/1, but they are claiming title to land in an alleged layout developed by M/s. Janmabhoomi Homes Pvt. Ltd. in Survey No. 85/2 and other Sy. Nos. of Manikonda Jagir Village; that the 5 respondent is said to be the vendor of respondent nos. 1 to 4; and taking advantage of the fact that P. Vishnuvardhan Rao had not taken up construction on the suit schedule property, the respondents had started interfering with the same. According to them, P. Vishnuvardhan Rao filed O.S. No. 377 of 2008 before the I Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar for perpetual injunction, but the said suit was dismissed on 28.11.2016.
9. Appellants contend that there was considerable development in respect of the lands, and the boundaries which are available in 2008 would not be available in 2016 when O.S. No. 377 of 2008 came up for leading evidence, and the said Court of I Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar, without getting the properties surveyed, dismissed the suit.
10. It is contended that taking advantage of the dismissal of the suit and the Pongal Vacation to the Courts in the months of January, 2017, the respondents encroached upon the suit schedule property on 09.01.2017, and dispossessed the appellants and therefore, they filed the instant suit.
The Written Statement filed by 4th respondent
11. Written Statement was filed by the 4 respondent opposing the suit claim. The respondent Nos. 1, 2 and 5 adopted the same.
12. It is contended that O.S. No. 377 of 2008 was filed by P. Vishnuvardhan Rao, predecessor in title of the appellants, with an intention to grab the plots of the respondents under the Sale Deed Ex. P.2, but in the said suit he failed to show how two side roads came to the suit schedule property without any development of the suit schedule property, and the suit was dismissed on 28.11.2016.
13. They denied that in January, 2017 they encroached and trespassed into the suit schedule property. According to them, the appellants are not the owners or possessors of the suit schedule property, that the vendors of P. Vishnuvardhan Rao were not in any way concerned with the suit schedule property, and the appellants did not file any link documents to show that his vendors were the owners of the suit schedule property.
14. It is also contended that the boundaries to the North and South are now described in the plaint as “neighbour's property”, but in the prior suit they were shown differently and in the Sale Deed Ex. P2, other boundaries are indicated and these prove that the suit schedule property land is not one belonging to the appellants.
15. It is contended that there is no open land of Ac.0.9 gts. in Survey No. 85/1 and all the land in the said survey number had been made into plots in the year 1974 by its original owners; that there was a re-approved layout dt.10.04.1999 obtained by the respondents' vendors by name, M/s. Janmabhoomi Housing Pvt. Ltd., whose Managing Director is the 5 respondent; and the 5 respondent sold plots to the respondents under Exs.R.1 to R.7 from 2001 till 2004. The details of purchase of land by each respondents is set out in the Written Statement.
16. It is asserted that ever since the date of purchase, the respondents were in peaceful possession and enjoyment of their properties.
17. Along with the suit, the appellants filed I.A. No. 618 of 2017 under Order 39 Rules 1 and 2 of Civil Procedure Code, 1908 to restrain the respondents from alienating/transferring the suit schedule property to third-parties; I.A. No. 619 of 2017 to restrain the respondents from changing/altering the nature of the suit schedule property pending disposal of the suit; and I.A. No. 620 of 2017 under Order 26 Rule 9 of Civil Procedure Code, 1908, requesting the Trial Court to appoint a Surveyor not below the Rank of Assistant Director (Survey and Land Records) with a direction to demarcate, localize and identify the suit schedule property with reference to village map, tippan and other statutory documents.
18. In I.A. Nos. 618 of 2017 and 619 of 2017, the appellants reiterated the contents of the plaint; and in the counter-affidavits filed in these IA.s, the respondents reiterated the contents of the Written Statement and opposed grant of interim relief, pending suit, to the appellants.
The plea in IA No. 620 of 2017
19. In I.A. No. 620 of 2017, it was specifically contended by the appellants that the property purchased by P. Vishnuvardhan Rao is situated in Survey No. 85/1, while the property developed by the vendors of respondents is situate in Survey No. 85/2 of Manikonda Jagir Village; and none of the respondents were claiming right, title or interest in Survey No. 85/1; and so, there was in fact only a dispute as to the identity of the property. It is contended that in view of the said dispute, it would be necessary to appoint a Surveyor to demarcate, localize and identify the suit schedule property.
20. The respondents also filed a counter in I.A. No. 620 of 2017 opposing appointment of a Surveyor.
The common order in I.A. Nos. 618 and 619 of 2019 of the Trial Court:
21. The Court below did not decide I.A. No. 620 of 2017, and decided only I.A. Nos. 618 of 2017 and 619 of 2017, and dismissed both these applications by common order dt.20.11.2019.
22. Before the Trial Court, the appellants marked Exs.P.1 to P.10, while the respondents marked Ex. R.1 to R.8.
23. The Court below referred to the documents filed by the appellants and, in particular, Exs.P.3, P.4 & P.5, and observed that after purchase under Ex. P.1 and pursuant to the proceedings under Ex. P.3, the name of the husband of the 1 appellant was entered in the Revenue Records, and Exs.P.2 to P.8 clearly establish that the husband of the 1 appellant purchased the suit schedule property covered by Survey No. 85/1 of extent Ac.0.9 gts.
24. It then referred to Exs.R.1 to R.7, filed by the respondents and noted that none of the respondents had purchased any inch of land in Survey No. 85/1 of Manikonda Jagir Village and that their lands are covered by Survey Nos. 85/2 and 85/2/Part and other Survey numbers.
25. It then concluded that Survey No. 85/2 is in existence; and so undoubtedly, Survey No. 85/1 will also be in existence and that without Survey No. 85/1 there would not be Survey No. 85/2.
26. After noting this, it observed that the predecessors-in-title of the respondents somehow made Survey No. 85/1 to disappear on the ground.
27. It then referred to Ex. P.9, a Plan prepared by the Mandal Surveyor filed by appellants, and that Ex. P.9 cannot be relied upon by the appellants to clinchingly establish the location of the property.
28. It also referred to Ex. R.8-Certified Copy of the judgment and decree in O.S. No. 377 of 2008 and noted that the plaintiffs in that suit did not file link documents to establish that their vendors had any right, title to convey Ac.0.9 gts. of land in favour of the 1 appellant's husband.
29. It then referred to the request of the appellants for appointing an Advocate-Commissioner for localising Survey No. 85/1 and held that due to their failure to localise the suit schedule property, no interim relief can be granted to the appellants in I.A. No. 618 of 2017 and 619 of 2017 even though some land is available in Survey No. 85/1 somewhere as per Exs.P.2 to P.10.
30. Assailing the same, the present Civil Miscellaneous Appeals are filed.
I.A. No. 3 and 4 of 2020 in C.M.A. No. 53 of 2020:
31. On 29.01.2020, in I.A. No. 3 of 2020 in C.M.A. No. 53 of 2020, this Court granted interim injunction restraining the respondents from alienating/transferring the suit schedule property. I.A. No. 4 of 2020 is filed to vacate the said order.
I.A. No. 2 and 3 of 2020 in C.M.A. No. 52 of 2020
32. On 29.01.2020, in I.A. No. 2 of 2020 in C.M.A. No. 52 of 2020, this Court directed the respondents not to change or alter the nature of the suit schedule property, pending disposal of the Appeal. I.A. No. 3 of 2020 is filed to vacate the said order.
33. Heard Sri. Sunil G. Ganu, counsel for appellants in both the Appeals; and Sri. V. Srinivas, counsel for respondent nos. 1 to 4.
The consideration by the Court
34. Having regard to the Ex. P.2-Sale Deed dt.13.10.1997, Ex. P.3 dt.30.10.1998 - Proceedings of the Mandal Revenue Officer, and Exs.P.4 and P.5, it is clear that the husband of 1 appellant P. Vishnuvardhan Rao did purchase Ac.0.9 gts. in Survey No. 85/1 from his vendors.
35. A perusal of Exs.R.1 to R.7, the title deed, relied upon by the respondents indicate that neither they, nor their vendors, had purchased any land in Survey No. 85/1, and their plots are covered by Survey No. 85/2 and 85/2/Part and several other survey numbers.
36. As rightly observed by the Trial Court, when Survey No. 85/2 is in existence undoubtedly Survey No. 85/1 will also be there; and without Survey No. 85/1, there would not be Survey No. 85/2.
37. When the appellants are claiming land in Survey No. 85/1, a separate sub-division of Survey No. 85, and the respondents are claiming land in Survey No. 85/2, a different sub-division in the same survey number, it was incumbent on the part of the Court below to first appoint a Surveyor in I.A. No. 620 of 2017 and get first Sy. No. 85/1 and Sy. No. 85/2 on the ground and the plaint schedule land localized as was sought by the appellants.
38. In Haryana Waqf Board v. Shanti Sarup (2008) 8 SCC 671, the Supreme Court held that if it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC.
39. In Badana Mutyalu v. Palli Appalaraju (2013) 5 ALD 376, this Court has held that in situations where there is controversy as to identification, location or measurement of the land, local investigation should be done by appointment of an Advocate Commissioner.
40. This was reiterated in Jajula Koteshwar Rao v. Ravulapalli Masthan Rao 2015 (6) ALD 483 that the object of the local investigation under Order XXVI Rule 9 CPC is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but can be taken only from the peculiar nature, on the spot. This Court held that the Commissioner in effect is a projection of the Court appointed for a particular purpose; and where there is an allegation of encroachment by one party which is denied by the other, oral evidence cannot come to an aid of a party and an Advocate Commissioner may be appointed to ascertain this fact; and that.
41. Thus when there is a dispute of localization or demarcation of property, the best course of action is to appoint an Advocate-Commissioner/Surveyor for localization.
42. We find it very strange that the Court below chose not to decide I.A. No. 620 of 2017 first, though it had been filed in April, 2017 and proceeded to decide I.A. Nos. 618 and 619 of 2017 first.
43. We do not appreciate this course of action being adopted by the Court below at all.
44. In our considered opinion, the Court below should have first allowed I.A. No. 620 of 2017 and directed demarcation of Sy. No. 85/1 and Sy. No. 85/2 and the property claimed by the appellants and then proceeded to decide I.A. Nos. 618 and 619 of 2017.
45. Without doing so, the Court below could not have observed that the predecessors in title of respondents somehow made Survey No. 85/1 disappear on the ground.
46. It erred in referring to Ex. P.9, which is a Plan got prepared through a Mandal Surveyor by the appellants without notice to the respondents, as the basis for deciding I.A. Nos. 618 and 619 of 2017. This is because such a plan would not be accepted by the respondents, and in any event, even the appellants, having filed I.A. No. 620 of 2017, obviously would not place much reliance on Ex. P.9.
47. Coming to the reference to Ex. R.8-judgment and decree in O.S. No. 377 of 2008, the Court below prima-facie could not have placed any reliance on the said order as well, because the said suit had been filed for a perpetual injunction by the husband of 1 appellant; but the instant suit is filed for recovery of possession by the appellants apart from declaration of title. Any findings on title recorded in OS. No. 377 of 2008 have to be prima-facie ignored while deciding O.S. No. 497 of 2017.
48. The Court below could not have refused localization of the suit schedule property by refusing to decide I.A. No. 620 of 2017 and then blame the appellants for their failure to localize the suit schedule property, and then deny relief in I.A. Nos. 618 and 619 of 2017.
49. We find the whole approach of the Court below to be perverse and impractical.
50. Accordingly, the Civil Miscellaneous Appeals are allowed. The common order dt.20.11.2019 passed in I.A. Nos. 618 and 619 of 2017 is set aside; and the matter is remitted to the Court below for fresh consideration.
51. The Court below shall allow I.A. No. 620 of 2017 and cause a survey done to localize/demarcate/identify Sy. No. 85/1 and Sy. No. 85/2 and also the plaint schedule property which is subject matter of O.S. No. 497 of 2017 at the earliest though a surveyor (not below the rank of Asst. Surveyor, Survey and Land Records) with reference to the village map, tippan and other statutory documents including the sale deeds relied upon by both sides; it shall then take into account the Survey Report after hearing objections of any party thereto, and decide I.A. Nos. 618 and 619 of 2017 afresh within a period of eight (08) weeks from the date of receipt of copy of the order.
52. Pending decision by the Trial Court afresh in I.A. Nos. 618 and 619 of 2017, the respondents are restrained from alienating/transferring the suit schedule property to any third-party and also changing/altering the nature of the suit schedule property.
53. Accordingly, the Civil Miscellaneous Appeals are allowed as above. Consequently, IA No. 4/2020 in CMA 53 of 2020 and IA. No. 3 of 2020 in CMA No. 52/2020 are dismissed. No order as to costs.
54. As a sequel, miscellaneous petitions pending if any in these Appeals, shall stand closed.
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