Andhra HC (Pre-Telangana)
Dammalapati Satyanarayana And Ors. vs Datla Venkata Ramabhadra Raju @ D.V.R. ... on 29 March, 2006
Equivalent citations: 2003(4)ALD675
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The petitioners filed O.S.No. 451 of 2004 in the Court of VII Additional District Judge, (Fast Track Court), at Visakhapatnam, for the relief of declaration of title and perpetual injunction, in respect of the suit schedule property. The respondents, in turn, filed a counter claim, for the relief of recovery of possession, in respect of that very property.
2. The respondents filed I.A.No. 201 of 2005 under Order XXVI Rule 9 CPC for appointment of an Advocate Commissioner, for the purpose of localizing the suit schedule property, with the help of competent surveyor, and to undertake certain ancillary steps. The trial Court allowed the LA. through order, dated 10-6-2005. The same is challenged in this civil revision petition.
3. Sri V. Ravinder Rao, the learned Counsel for the petitioners submits that appointment of an Advocate Commissioner for the purpose of localizing the suit schedule property, much before the trial commenced, would amount to a step, enabling the concerned party to gather evidence. He contends that the very filing of such an application discloses that the respondents were not sure as to the property, in respect of which they are making their claim for recovery of possession.
4. Sri E.V.V.S. Ravi Kumar, the learned Counsel for the respondents, on the other hand, submits that initially the petitioners purchased the property in Survey Nos. 339/5 and 6 and the sale deeds were later on rectified by mentioning the Survey Numbers as 339/9 and 10. The learned Counsel points out that it is to resolve the uncertainty that the respondents filed the application and that no exception can be taken to the order under revision.
5. In their suit, the petitioners pleaded for the Petitioners; E.V.V.S. Ravi Kumar, that they purchased the property from their Counsel for the Respondents. vendor with definite boundaries and by mistake, the Survey Numbers were mentioned as 339/5 and 6. They also pleaded that later on the Survey Numbers were rectified as 339/9 and 10, but the boundaries and the extent remained the same. The respondents, in turn, referred to certain transactions, in respect of the land, not only in the said Survey Numbers but also several other bits such as 339/9B, 9H, 91, 13B, 14A, 14B and 17A. Basically, these claims disclose that the parties are yet to be certain as to their claim in respect of any definite property. The Court has to identify the exact area of controversy and frame necessary issues. The parties, in turn, have to adduce oral and documentary evidence with reference to the issues, so framed. Unless these aspects are clear, appointment of an Advocate Commissioner would amount to an exercise to gather evidence. Further, the prayer in the LA. is so uncertain that it would change the very complexion of the suit. The prayer reads as under :
to appoint an Advocate Commissioner for the purpose of localizing the suit property with the help of competent surveyor, basing on the title deeds (sale deeds) of both parties with reference to the official survey and revenue records such as FMB, survey plans etc., and to draw a plan clearly demarcating the location of the suit property with survey not and boundaries, and the property of the plaintiffs and also to take photographs of the suit schedule property.
6. The result of allowing the I.A. is that the Advocate Commissioner shall undertake localization of the suit schedule property with the help of a competent surveyor, basing on the title deeds of both the parties. It must be noted that the so-called title deeds must be accepted by the Court in evidence, before they constitute the basis for identification of the property. The admissibility, relevance etc., of the sale deeds can be undertaken only at the stage of recording evidence. The demarcation of the land with reference to location, survey numbers etc., must be with reference to the title deeds, which are admitted by the Court in evidence. If the report is submitted, even before the evidence is adduced, a stage may come, where the whole trial will revolve around such report.
7. For the foregoing reasons, the civil revision petition is allowed and the order under revision is set aside. It is, however, made clear that if after the parties lead evidence, the trial Court comes to the conclusion that there is any overlapping of the property claimed by the petitioners on the one hand and the respondents on the other; it can certainly consider the feasibility of appointing Advocate Commissioner to identify or localize the suit schedule property, with reference to the documents specified and indicated by the Court. There shall be no order as to costs.