Andhra Pradesh High Court - Amravati
J Dasadhudu vs P Simhachalam on 15 June, 2022
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No.133 of 2019
Jami Dasaradhudu ... Petitioner
Versus
1) Polipilli Simhachalam
2) Polipilli Rajeswari ... Respondents
Counsel for the Petitioner : Mr.S.Srinivasa Rao
Counsel for Respondents : Mr.G.V.S.Mehar Kumar
2
NJS, J
crp_133_2019
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No.133 of 2019
ORDER:
The present Revision Petition has been filed aggrieved by the Order dated 11.09.2018 in I.A.No.604 of 2018 in O.S.No.138 of 2018 on the file of the III Additional Junior Civil Judge, Visakhapatnam.
2. Heard Mr.S.Srinivasa Rao, learned counsel for the petitioner and Mr.G.V.S.Mehar Kumar, learned counsel for the respondents.
3. The petitioner herein is the plaintiff in O.S.No.138 of 2018. He filed the said suit against the respondents/defendants, seeking a decree for declaration that the constructions made by the respondents/defendants in plaint „B‟ schedule property is illegal, mandatory injunction directing them to remove the constructions made in the said property and for permanent injunction restraining them, their men etc., from making further constructions in the said property. It is the case of the petitioner/plaintiff that he purchased plaint A‟ schedule property through a Registered Sale Deed dated 17.02.2011 and has been in peaceful possession and enjoyment of the same, without any interruption from whomsoever. In the plaint, he averred that the defendants, who are the neigbours of plaint „A‟ schedule property started construction of house by demolishing their existing house and in that process they illegally and highhandedly encroached into an extent of Ac.0.08 feet length from North to South and 9.06 feet width from East to West towards Northern side of the plaint „A‟ schedule property, including the 2 feet joint lane, totaling to 4.08 feet, made construction of staircase, steps for three floors and that the defendants are trying to make construction of bathroom under the 3 NJS, J crp_133_2019 staircase. The particulars of the property, wherein the defendants made constructions is more fully described in the Schedule-B annexed to the plaint. Along with the suit, the petitioner/plaintiff filed I.A.No.604 of 2018 under Order XXVI, Rule 9 of the Code of Civil Procedure (hereinafter called as „CPC‟) seeking appointment of an Advocate Commissioner to measure the properties of both the parties with reference to their respective documents with the assistance of Mandal Surveyor and also to note down the physical features therein. The respondents/defendants filed their counter and opposed the application filed by the petitioner/plaintiff. The learned Trial Court after considering the matter dismissed the said I.A, against which the present Revision Petition came to be filed. It may be appropriate to mention here that the petitioner/plaintiff also moved an application I.A.No.211 of 2018 under Order XXXIX, Rules 1 and 2 and Section 151 of CPC seeking to grant temporary injunction restraining the defendants/respondents, their men etc., from making further constructions in petition „B‟ schedule property, till disposal of the main suit and the said application was dismissed on the same day i.e., on 11.09.2018, against which C.R.P.No.777 of 2020 was filed.
4. The learned counsel for the petitioner/plaintiff inter alia contended that the Order of the learned Trial Court amounts to failure to exercise the jurisdiction vested in it, in a proper perspective. He submits that the conclusion of the learned Trial Court to the effect that the suit is coming for framing of issues, but not for trial and at that stage, if the Court allows the application to note down the physical features and measurements, it amounts to collection of evidence to support the case of the petitioner/plaintiff, is unsustainable and perverse. He submits that appointment of Advocate Commissioner for making local inspection and to 4 NJS, J crp_133_2019 note down the physical features would not amount to collection of evidence. He submits that in the wake of the allegations of encroachment by the respondents/defendants in the plaint schedule property, the appointment of Advocate Commissioner is essential and his report would render assistance to the learned Trial Court in adjudicating the dispute effectively. He submits that the view taken by the learned Trial Court is contrary to the settled Law and places reliance on the decisions in G.L. Purushotham and Others vs. Nagaraju and another1, Bandi Samuel and another vs. Medida Nageswara Rao2 and K.Kesava vs. S.Govinda Reddy3 and urges for allowing the Revision Petition by setting aside the Order under challenge.
5. The learned counsel for the respondents/defendants, on the other hand supported the Order passed by the learned Trial Court contending inter alia that the petitioner/plaintiff under the guise of appointment of Advocate Commissioner is trying to collect evidence and the same is not permissible in Law. He submits that the petitioner/plaintiff without having any proper documents in support of his claim is interfering and causing obstruction to the respondents/defendants. He further submits that the Order of the Trial Court is well reasoned, within its discretion and warrants no interference by this Court, as the same does not suffer from any material irregularity or perversity. He submits that there are no merits in the Civil Revision Petition and the same is liable to be dismissed. The learned counsel also places reliance on the decision in Sarala Jain vs. Sangu Gangadhar4.
1 2015 (5) ALD 460 2 2017 (1) ALD 582 3 2019 (5) ALD 241 4 2016 (3) ALT 132 5 NJS, J crp_133_2019
6. On a consideration of the rival submissions, the point that falls for consideration by this Court is as to "Whether the Order of the Trial Court in rejecting the application for appointment of Advocate Commissioner is not sustainable, in the facts and circumstances of the case?"
7. A reading of the Order under Revision would go to show that the learned Trial Court rejected the application seeking appointment of the Advocate Commissioner mainly on two grounds i.e. a) Advocate Commissioner need not be appointed to note down the physical features, as it is nothing but collection of evidence; and b) the suit is coming up for framing of issues, but not for trial and therefore the application to appoint Advocate Commissioner to note down the physical features and measurements is only for collection of evidence. The Lower Court while recording its conclusions referred to the decisions relied on by the respondents/defendants.
8. Before adverting to the Order under Revision, it may be appropriate to note that the power of the Court under Order XXVI, Rule 9 of CPC is discretionary, but the same has to be exercised in a judicious manner, depending on the facts and circumstances of each case. It has to appreciate the overall case by taking into consideration the pleadings of the parties and the reliefs claimed with reference to the controversy between the parties and the necessity to appoint Advocate Commissioner in deciding the dispute. It is also settled Law that an Advocate Commissioner can be appointed at any stage of the suit or during the pendency of the appeal.
6
NJS, J crp_133_2019
9. In the present case, the plaint averments specifically refers to alleged encroachment by the defendants into plaint „B‟ schedule property, including the joint lane and undertaking of constructions by the respondents/defendants. In that context, the petitioner/plaintiff sought to measure the properties of both the parties with reference to their respective documents with the assistance of Mandal Surveyor and to note down physical features.
10. In Bandi Samuel‟s case referred to supra relied on by the learned counsel for the petitioner, a learned Judge of the erstwhile Common High Court for the State of Telangana and the State of Andhra Pradesh at Hyderabad referred to a catena of cases with reference to appointment of Advocate Commissioners and it may be profitable to refer to the relevant paragraphs from the said decision, for better appreciation:
"7. The object of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to collect evidence where the party can procure the same. An Advocate Commissioner can be appointed under Order XXVI Rule 9 of the Code of Civil Procedure 1908 inter alia for elucidating any matter in dispute. There is some confusion as to in what circumstances an advocate-commissioner is to be appointed in a civil suit. To answer this question, we have to understand the expression of elucidating any matter in dispute in Order 26, Rule 9 of CPC. There are several expressions in this regard. Some are under the impression that no advocate- commissioner is to be appointed in suit for injunction. For example, the claim for injunction made by the plaintiff is based on the plea that there is only one way to his house and that he is being prevented by the defendant from using said way, any amount of evidence in this regard may not help the Court to render a correct finding on this aspect, as evidence in this regard would be available on the spot at the ground/field. So, a situation such as this would definitely fall within the expression of elucidating any matter in dispute to avoid adducing of much oral evidence by consuming time of Court and parties and ultimately with no possibility of practical approach for accurate determination of the lis. No doubt, before appointing an advocate commissioner, Court shall examine pleadings, relief claimed and real controversy between parties. Court has to keep in mind therefrom to decide whether there is an actual necessity to appoint advocate commissioner to decide any real controversy between parties.
8. No doubt an Advocate-Commissioner cannot be appointed for making an enquiry about factum of possession of the property in dispute, which is nothing, but fishing of information and not elucidating any matter in dispute.7
NJS, J crp_133_2019
9. There are circumstances in which, it is only a Commissioner inspecting the property promptly and recording timely assessment of what obtains relating to the property from threat of changing or obliterating the existing physical features to destroy valuable evidence on ground, could alone assist courts to decide correctly. If such prompt actions are not taken, it may destroy the valuable rights of the parties.
10. In Bandaru Mutyalu Vs. Palli Appalaraju, 2013 (5) ALD 376 = 2013 (6) ALT 26, it was held that in situations where there is controversy as to identification, location or measurement of the land, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared and the object of local investigation under Order XXVI, Rule 9 of the Code which cannot belittled for that conclusion placed reliance upon Sanjay, Son of Namdeo Khandare Vs. Saheb Rao Kachru Khandare, 2001 (4) CCC 416; Ponnusamy Pandaram Vs. The Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad.33; Mahendranath Panda Vs. Purnanada & Others, AIR 1988 Ori. 248; C.Veeranna v. C.Venkatachalam, 1958 ALT 792 = AIR 1959 AP 170, and Savitramma v. B.Changa Reddy, 1988 (1) ALT.
11. In J. Satyasri Rambabu Vs. A. Anasuya, 2005 (6) ALD 389, this Court at paragraph No.6 held as under: It is no doubt true that the Courts are normally reluctant to appoint a Commissioner for noting physical features of the suit schedule property, particularly in a suit for injunction since the same would amount to collecting evidence in favour of one of the parties. However, there is absolutely no reason to hold that it is a hard and fact rule. Having regard to the facts and circumstances of the case and particularly whenever the Court prima facie finds that there is an attempt on the part of one of the parties to alter the physical features of the suit property and it is necessary to take note of the same, it is always open to the Court to appoint a Commissioner for inspection of such property.
12. In Mallikarjuna Srinivasa Gupta Vs. K.Sheshirekha, 2006 (3) ALD 362, in which case, a suit was filed for declaration of title and an application was filed contending that the defendant therein encroached a portion of the site. The stand of the defendant therein was that he has not encroached any portion of the site as alleged by the plaintiff. In the circumstances, this Court held as follows: By mere looking into the sale deed or the lay out, it is not possible to determine the rights, unless it is verified whether any portion of the building is constructed in Plot No.62. Therefore, it is essential to consider the request of the petitioner for appointment of Advocate Commissioner for the purpose mentioned therein.
13. In Varala Ramachandra Reddy Vs. Mekala Yadi Reddy and others, 2010 (4) ALD 198, it was held that an Advocate Commissioner can be appointed in an injunction suit for local inspection of the suit site and to demarcate the suit schedule property with the help of the Surveyor.
14. In Shaik Zareena Kasam v. Patan Sadab Khan, 2011 (4) ALD 231, this Court at paragraph No.10 held as under: Whenever there is a dispute regarding boundaries or physical features of the property or any allegation of encroachment as narrated by 8 NJS, J crp_133_2019 one party and disputed by another party, the facts have to be physically verified, because, the recitals of the documents may not reveal the true facts and measuring of land on the spot by a Surveyor may become necessary. It was also held referring to Mallikarjuna Srinivasa Gupta and Varala Ramachandra Reddy (supra), that if there is some delay in filing the application to appoint an Advocate Commissioner and if there are some laches on the part of one party, the Court may impose reasonable costs
15. In Donadulu Uma Devi v. Girika Katamaiah @ Basaiah, 2013 (2) ALD 86 = 2013 (1) ALT 548, it was held at para 12 that when there is a dispute or issue with regards to identity of a property in a litigation it is necessary to appoint a Commissioner for localizing the property which may be even by taking necessary assistance from a qualified surveyor which will not amount to collecting evidence which is prohibited.
16. ..............
17. The Supreme Court in Gurunath Manohar Pavaskar & others vs. Nagesh Siddappa Navalgund and others, CDJ 2007 SC 1339, has held that the learned trial Judge may appoint an Advocate- Commissioner for the purpose of taking measurement and demarcation of the disputed suit land.
18. The Supreme Court in Haryana Waqf Board supra, at paragraphs 4 to 8 held as under: "Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC."
11. In G.L. Purusotham‟s case referred to supra, a learned Judge of the erstwhile Common High Court for the State of Telangana and the State of Andhra Pradesh at Hyderabad was dealing with a matter, wherein in a suit for perpetual injunction, initially an Advocate Commissioner was appointed and directed to file a report as to the physical features of the suit locality, but there was no direction to him to take assistance of the Mandal Surveyor. The Advocate Commissioner filed the report after conducting the survey. Subsequently, an application was filed under Order XXVI, Rule 9 of CPC to appoint the same Advocate Commissioner to inspect the plaint schedule properties with the help of Mandal Surveyor and to locate it and file a fresh report. The said application was dismissed 9 NJS, J crp_133_2019 by the learned Trial Court. In the Revision, the Hon‟ble Single Judge while taking note of the pleadings of the respective parties and referring to the various decisions, set aside the Order of the Trial Court inter alia concluding as follows:-
"16. In the present case, from the pleadings of the parties it is clear that respondents alleged that it is the petitioners who encroached their property while the petitioners allege that it is the respondents who have encroached their property. Therefore, it is necessary to localize the suit schedule properties and this can be done with the help of an Advocate- Commissioner, who takes the assistance of the Mandal Surveyor and also with reference to the F.M.B and other relevant records."
12. In the light of the above legal and factual position of the case, the contentions advanced by the learned counsel for the petitioner deserves appreciation and the same are upheld. The decision in Sarala Jain referred to supra, on which reliance is placed by the learned counsel for the respondents, is distinguishable on facts. Though the learned Judge in the facts and circumstances of the said case set aside the Order of appointment of an Advocate Commissioner for the reasons set out in the decision, while referring to the Judgment of the Hon‟ble Supreme Court in Haryana Waqf Board and Others vs. Shanti Sarup and Others5 at Para 20 held that "commissioner can be appointed for localization of property when there is dispute or issue with regard to identity of property in litigation‟. The said decision is not of much help to the respondents. Though the appointment of Advocate Commissioner is discretionary, the learned Trial Court had failed to consider the overall facts and circumstances of the present case and the necessity to appoint an Advocate Commissioner. To resolve the factual controversy, as opined by the learned Judge in Bandi Samuel‟s case, evidence with regard to encroachment would only be available on the spot and no amount of oral 5 2008 8 SCC 671 10 NJS, J crp_133_2019 evidence would establish the fact and where there is requirement of localization of the disputed property and adjudication as to the encroachment or otherwise in the light of nature of the lis, an Advocate Commissioner can be appointed. This Court considering the matter in its entirety, more particularly, with reference to the decisions referred to supra, is of the opinion that the Order under Revision requires interference. Accordingly, the impugned Order is set aside.
13. The Civil Revision Petition is accordingly, allowed. The Order dated 11.09.2018 in I.A.No.604 of 2018 in O.S.No.138 of 2018 on the file of the III Additional Junior Civil Judge, Visakhapatnam is set aside and the I.A stands allowed. No Order as to costs.
As a sequel, miscellaneous applications, if any, pending shall stand closed.
__________________
NINALA JAYASURYA, J
Date: .06.2022
IS
11
NJS, J
crp_133_2019
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
Civil Revision Petition No.133 of 2019
Date: .06.2022
IS