KOMMALAPATI MADHAVI Vs. BYRAPUNENI VIJAYA LAKSHMI

JUDGEMENT

(1.) This Civil Revision Petition is filed by the petitioners/R1, R2/D1, D2 under Article 227 of Constitution of India against the orders passed by the learned III Additional District Judge, Ongole, in I.A.No.269 of 2013 in O.S.No.130 of 2011 wherein and whereby the learned trial Judge allowed the petition filed by R1, R2/plaintiffs under Order XXVI Rule 9 read of Civil Procedure Code (in short 'CPC') and appointed an advocate - commissioner for the purpose of localization of the land bearing Sy.No.284 to an extent of Ac.2.68 cents.

(2.) The case of R1, R2/petitioners/plaintiffs in brief before the trial Court is that they filed suit for cancellation of agreement of sale -cum- General Power of Attorney dtd. 7/6/2010 executed by D3 to D8 in favour of petitioners/D1, D2 and for permanent injunction in respect of plaint schedule property. They submit that they are relying on sale deed dtd. 10/2/2010 under which they said to be purchased plaint schedule property and they have been enjoying the same, whereas petitioner/D1, D2 have been contending that they are the owners of suit schedule property. They submit that the petitioners are contending that they are the owners of the suit property, due to that, it is necessary for them to locate property purchased by them and also to locate the property purchased by petitioners/D1, D2. It is the contention of R1, R2/plaintiffs that if advocate commissioner is appointed, he will localize the property purchased by them and also the property purchased by petitioners/D1, D2 and as both parties are claiming the suit property, it is necessary to appoint an advocate commissioner to identify the property to know whether the property purchased by them and property purchased by the revision petitioners/R1, R2 is one and the same and whether it is in single plot which helps the Court to dispose of the suit effectively. They pray to appoint an advocate commissioner to measure Ac.2.68 cents of land in Sy.No.284 and to fix the boundaries with reference to the sale deeds of both sides.

(3.) For which revision petitioners/R1, R2 filed counter denying averments in the affidavit of R2/2nd petitioner/2nd plaintiff. It is the contention of revision petitioners that R1, R2 are not in possession and enjoyment of plaint schedule property as they are only the general power of attorney holders and they have no title over the plaint schedule property. They submit that vendors of R1, R2 also have no title over the plaint schedule property, who colluded with R1 and R2, fabricated General Power of Attorney - cum - sale deed dtd. 10/2/2010 without delivery of possession. They further submit that R1 and R2 cannot file petition to locate their property through an advocate commissioner, which is against their pleadings in the suit and petitioners could not succeed in their Civil Miscellaneous Application filed before this Court, now came up with a petition to appoint an advocate commissioner only to drag on the proceedings. It is also the contention of revision petitioners that R1, R2 can get Mandal Surveyor appointed by paying required challan to measure their property for which, there is no need to appoint an advocate commissioner for survey the land to identify the property and to localize the plots. They pray to dismiss the petition.