K Anasuyamma And Another v. G Balaiah , Aggu Balaiah And Another
This judgment came from a scanned document and its text layer is unreliable — words may be garbled. Check the original PDF before relying on any passage.
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD FRIDAY, THE THIRTY FIRST DAY OF DECEIVIBER TWO THOUSAND AND TWENTY ONE PRESENT THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CIVIL EVISION PETITION NO : 3097 0F 2015 Petition under Article 227 of lhe constitution of lndia aggrieved by the order daled 27 .07.2o15 in l.A.No.7 of 2015 in o.S.No.4599 of 2008 on the file of the court of the Principal Rent Controller -cum- 12th Junior Civil Judge, Hyderabad. Between:
1. K. Anasuyamma, Wo Late K. Achaiah, aged about 68 years, Occ: Household,
2. K. Karun Kumar Yadav, S/o Late K. Achaiah, aged about 37 years, Occ: Business, Both are Rl/o. H.No. CIB Quarter No.14 B, MCH No.6-1-269, Ap Housing Board, Khairatabad, Hyderabad.
...PETITIONERS/RESPONDENTS/DEFENDANT Nos.1 & 3 AND
1. G. Bal{ah @ Aggu-Balaiah, S/o G. Pentaiah @ ASSu pentaiah, aged about 69 years, Occ: Retd., Service, F/o H.No.6-1-271 , Kairatabad, Hyderabad. .,.RESPONDENT/PETITIONER/PLAINTIFF
2. A. Sitamma, W/o. Late K. Achaiah.
(Died on 02.07.2012, therefore not necessary party) ..RESPONDENTS/RESPONDENTS/DEFENDANT NO,1 CRPMP. NO:4128 OF 2015 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to grant stay of all further proceedings including execution of warrant by the Advocate Commissioner as per the orders d1.27.07.2015 made in l.A.No.7 of 2015 in O.S.No.4599 of 2008 on the file of the Principal Rent Controller, Hyderabad pending disposal of CRP of 2015 Counsel for the Petitioners: SRI L. PRABHAKAR REDDY Counsel forthe Respondents: SRI B. AJAY The Court made the following: ORDER
THE l ION'BLE SMT. JUSTICE P. SREE SUDHA ,/ / CwI: , REVISION PETITION No.3O9Z of 20lS ORDER:
This C R.p. is filed by the defendants in the suit, questioning t he order d.ated 27 .7 .2O 15 passed in I.A.No.7 of 2015 in O.S No.4599 of 2OOg on the file of principal Rent Controller-cu n-XII Junior Civil Judge, Hyderabad. 2.
The suit in O.S.No.4S99 of 200g was filed for mandatory injunction to Cemolish the illegal and unlawful construction on upper thrr e floors of defendants 1 and 2 on the plaintiff properlr's co' nmon wall. In the said suit, plaintiff fired I.A.No.7 of 2O 5 under Order 26 Rule 9 read with Section l5 1 of CPC to aptr oint an Advocate Commissioner to note down the physical fe rtures incruding measurement of lt,a1ls between CIB Quarter r{o.15/B and, 14 lB. The trial Court, after considering th : matter, allowed the application by impugned order dated 2,.2.2015, appointing Mr.B.preetam Singh, as Advocate Comr rissioner to note down the physical features in between CIB ( uarter Nos. l5/B and l4/B and also to note down in his rr port whether there exists a common waII in between both .he quarters and also to measure the joint common wall ir. between the said quarters. euestioning the said order, th: present revision petition is liled by the defendants.
3.
According to the learned counsel for revision petitioners/ defendants, the suit is filed for mandatory injunction for demolition of the constructed portion of the defendants and it is for the piaintiff to plead and prove his case instead of collecting evidence through Advocate Commissioner. It is further stated that the plaintiff is a subsequent purchaser to that of defendants and he cannot be aliowed to contend that the wall between the parties is a common wall, which is contrary to the record and without any valid proof. It is also stated that the defendants have purchased the property on 8.4.1969, much prior to the purchase of plaintiff's mother who purchased on 9.6. 1994. 4.
The learned counsel for the revision petitioners/ defendants submitted that in the written statement filed by defendants, it is categorically stated that in the sale deed of plaintiff's mother in respect of Qr.No.15/B, no common wal1 is mentioned in the recitals or it was shown in the plan annexed to the sale deed and there is no common wall existing between plaintiff and the defendants quarters, therefore, the question of encroachment on to the alleged common wa1l by the defendants does not arise. Therefore, the impugned order passed by the trial Court, directing the Advocate Commissioner to note down the physical features of the subject property and also to note there exists a common
/ / wall or not, is arbitrary, illegal and contrary to the record and therefore liabl: to be set aside.
5. Heard tl Le learned counsel for revision petitioners and perused the rr cord.
6.
Since tl e defendants specifically contended in their written staten ent that there is no common wall in existence between the plaintiff.and defendants, the impugned order of the trial Court appointing the Advocate Commissioner to note down whether there exists a common wall or not is error apparent on t he.face of the record and is liable to be set aside.
Accordin 31y, the C.R.P. is allowed, setting aside the order dated 27.7.2015 passed in I.A.No.7 of 2015 in O.S.No.4599 c12008 on the file of principal Rent Controllercum-XII Juni< r Civil Judge, Hyderabad. There shall be no order as to c )sts. Miscellaneous petitions pending, if any, shall stand closed.
{iD/-K.SAILESHI ASSISTANT REGISTRAR \V, //TRUE COPY// SECTION OFFICER l The Principar Re rt controrer^-c.u.m- 12rh Junior civir J-udge. Hyderabad. ?. 9n" CC to Sri L. prabhakar neao_v, nolocai" ioEijlr
3. One cc to sri B. Ajay, Advocate t',cjpUci--* ,-' "'
4. Two CD Cooies
5. One Spare bopy gbr To,
HIGH COURT DATED: 3111212021 I /i., /t :)oo\.c + yrE STAi'6 O1 \ 2{i22 15 ttts
ORDER
'\i CRP.No.3097 of 2015 ALLOWING TIIE CRP ) L \-, vl