N SAVITRAMMA Vs. B CHANGA REDDY

JUDGEMENT

(1.) This is a revision preferred by the defendants against an order refusing to appoint a commissioner under Order 26 Rule 9 of the Code of Civil Procedure. Tne suit was filed b/ the respondent plaintiff for a declaration of his title to the plaint schedule property and for parmanent injunction. Tha plaint schedule describes the land as bsing a n extent of 3 acres and 14 cents with Fruit bearing trees in S No 94/1 of Nadigadda village. The respondent plaintiffs case was that the suit property was originally owned by Addanki Nagaiah and his four sons jointly and they executed a registered sale deed in favour of the respondent-plaintiff on 12-1-1969 and put him in possession. The plaint also admits that the defendant-petitioner's family got one half share and that later there was a further division and the southern half share fell to the defendants and the northern half. Share fell to the plaintiff predecessors-in-title. In the northern half share thereara 38 mango trees and the southern half share allotted to the petitioner defendants was fully covered by a mango garden. The plaintiff alleges that there is no seperate fence dividing the 38 mango trees on the northern side belonging to the plaintiff and the rest of the mango garden. The plaintiff has been enjoying these 38 mango trees all along on the northern side of S No 94. It is than stated that the petitioner-defendants thretened to obstruct the plaintiff's enjoyment of these 38 mango trees taking advantage of the non-existence of a fencs separating the same from the petitioner-defendant's land. It is stated that the plaintiff moved the Tahsildar for sub-division of the pattas and that there is a sub-division of the survey number as S No 94/1 and that in 1985 the petitioner-defendants unlawfully cut and carried away the mango usufruct causing loss the plaintiff. These are stated to be the reasons, for the filing of the suit.

(2.) The sale deed dt. 12-1-1967 in favour of the plaintiff respondent mentions the boundaries thereof : The southern boundary is shown as the mango garden of Narasimha Reddy, the western boundary is shown as the land of S. Venkataswamy, the eastern boundary is shown as the Gorgeyanadi and the northern boundary is shown as the vendor's mango garden and the tank therein.

(3.) The defendants filed t h e present I A for appointment of a Commissioner stating that the plaintiff has nothing to do with the plaint schedule proparty and has no title or possession and that the entire mango garden forms one single unit and the same Is surrounded by a fence separating the land of the plaintiff with that of the mango gardan in question. It is further stated that the very sale deed dt. 12-1-1987 in favour of the plaintiff shows that the mango garden is situate to the south of his other land. It is, therefore, necessary that the mango gardan in question be inspacted by a commissioner to note its physical features and to locate tha same as per the registered sale deeds dated 20-4-1954 and 12-12-1954 and note the other physical features which are necessary to avoid multiplicity of suits. To this application filed by the defendants, the plaintiff filed a counter stating that the defendants owned only Ac 2-14 cents out of the total extent of Ac 6-28 cents out of S No 94 and the rest of the extent of land of Ac 4-14 cents belong to the plaintiff. It is further stated that this extent of Ac. 4-14 cents was acquired by the father of the plaintiff late Narasimha Reddy under a registered exchange deed dt. 28-10-1984 and that from that date Narasimha Reddy was in possession. It is alleged that the entire extent of Ac. 4-14 cents is surrounded by en old fence of line of 'Kalabanda', which is easily aged about 50 years.