ASIFNAGAR SMASHANAGHAT COMMITTEE Vs. SHAIK YOUSUF

JUDGEMENT

(1.) The petitioners/appellants moved the above applications for appointment of Advocate-Commissioner to demarcate boundaries of the land in S.No.22 paiki and the land in S.No.24 of Asifnagar Village/Mandal, Hyderabad with the assistance of Mandal Surveyor, Asifnagar Mandal after taking work memos from the Counsel representing the parties and to make local inspection and note down the illegal and unauthorized construction made by respondent/plaintiff in both these matters in S.No.22 paiki during the pendency of the suspension application in the Appeal and pass such other suitable orders.

(2.) Sri T. Ramakrishna Rao, the learned Counsel representing the petitioners/ appellants had brought to the notice of this Court that in both the suits I.A.No.349/2000 and 350/2000 Commissioners were appointed only to note down the physical features and in fact the learned Commissioners made a request praying for directions relating to demarcation of the boundaries relating to the land in S.No.22 paiki and S.No.24 of Asifnagar and in fact such objections were taken even by the parties. But however the said contentions had not seen their logical end before the original Court. The Counsel also would submit that when the Commissioners made such a request, the appellants herein as defendants before the original Court had not pursued this aspect further. The Counsel also would submit that though initially specific stand was taken that S.No.24 is in fact nonexistent, the fact remains that an additional issue relating to the identity of the property in S.No.22 Paiki and S.No.24 had been framed and however the Trial Court had not recorded proper findings in this regard though an additional Issue was specifically settled. The Counsel also would maintain that when the application for suspension of the perpetual injunction decrees granted by the Trial Court are pending before this Court, the respondent/plaintiff in both these matters had instituted yet another suit as against Revenue Officers and obtained interim orders and they have been further proceeding with the constructions and in the light of these facts and circumstances it would be just and proper to appoint an Advocate-Commissioner as prayed for since this question definitely cannot be resolved by adducing any amount of oral evidence.

(3.) On the contrary, Sri Shiv Kumar, Counsel representing the respondent/ plaintiff in both these Appeals would maintain that the title is clearly traceable at least from 1974 onwards. The Counsel also would submit that the subject-matter of these suits are small pieces of land located in S.No.24 and the petitioners/appellants in these matters now are praying for the demarcation of the boundaries of the land in S.No.22 paiki and S.No.24 of Asifnagar Village despite the fact that specific plea was taken in the written statements before the original Court that S.No.24 is a nonexistent one. In the light of the said specific plea, the subsequent settlement of additional issue would be of no consequence. Even otherwise, the Counsel would maintain that on the strength of the title deeds and other evidence available on record, clear findings had been recorded by the Court of first instance. The learned Counsel also would submit that no reasons are forthcoming why the petitioners had not pursued the matter further either praying for appointment of yet another Commissioner when the suits were pending or no reasons had been specified in the affidavits filed in support of these applications why at the appellate stage these applications are being moved. At any rate, such a roving enquiry by appointing a Commissioner for the purpose of collecting evidence in a matter of this nature is impermissible in law. The learned Counsel no doubt in all fairness submitted that the purpose for which the Commissioners were appointed before the original Court was only to note down the physical features and the present purpose prayed for in the present applications no doubt is different.