CHINTAPATLA ARVIND BABU Vs. K BALAKRISTAMMA ALIAS BHARGAVI

JUDGEMENT

(1.) The defendants in O. S. No. 7 of 1990, D.M.C., Nagar Kurnool are the revision petitioners. The suit was filed for injunction in regard to the house bearing No. 15-30. The plaintiffs claim that the plaint schedule property belongs to the 1st plaintiff and 2nd plaintiff is the tenant therein. The defendants contend that their father Srinivasa Chari purchased plot bearing No. 44 Class D to an extent of 200 square yards under a registered sale deed No. 480/60 dated 17-5-1960 from the National Educational Society of Nahar Kurnool and constructed the house bearing Nos. 15-31, 15-33 and 15-40 after obtaining permission from f he panchayat and the 2nd defendant is their tenant in house bearing No. 15-38. It was further urged for the defendants that the father of the 1st plaintiff purchased a plot bearing No, 43 Class D of an extent of 200 spuare yards through a registered sale deed No. 470/60 dated 17-5-1960 from the same National Educational Society and constructed house bearing Nos. 15-35, 15-36 and 15-37.

(2.) The defendants filed KA. No. 77 of 1990 praying for appointment of an advocate-Commissioner for localising the plots covered by 44-D and 43-D in order to establish that the house bearing No. 15-36 is in plot No. 44 belonging to them. The lower Court dismissed the said petition by observing that it is sufficient, if prima facie case is established in a suit for injunction and the 1st plaintiff is reling upon the registered will dated 18-2-1988 executed by her father whereby the plaint schedule house was bequeathed to her, and it is a mere suit for injunction and as it is not a suit for declaration, it is not a fit case for ordering appointment of an advocate-Commissioner for locating plots 43 and 44, and 0.26, R. 9, C.P.C. does not empower the Court to appoint a commissioner for localising the plots and it is intended for appointing the Commissioner only to note the features.

(3.) The learned counsel for the respondent urged that this revision petition is not maintainable, as the order of dismissal of a petition praying for appointment of a Commissioner is not a case decided as contemplated under Section 115, C.P.C. It was further urged that as it is a mere suit for injunction, the lower Court rightly exercised the jurisdiction in refusing to allow the petition, for an injunction can be claimed by a person in possession even against a lawful owner.