Telangana High Court
Salveru Padmarao vs Varin And Varin Constructions P Ltd., ... on 6 September, 2024
HON'BLE SRI JUSTICE J.SREENIVAS RAO
Civil Revision Petition No.2336 of 2024
ORDER:
This Civil Revision Petition is filed invoking the provisions of Article 227 of the Constitution of India, aggrieved by the orders dated 03.07.2024 passed by the Senior Civil Judge, Kamareddy in I.A.No.66 of 2023 in O.S. No.7 of 2015.
2. Revision petitioner herein is the plaintiff and respondent No.1 is defendant No.22 in the suit. For the sake of convenience, the parties herein are referred to as they were arrayed in the suit in O.S.No.7 of 2015 before the Court below.
3. Brief facts of the case:
3.1 Plaintiff filed suit in O.S. No.7 of 2015 on the file of Senior Civil Judge, Kamareddy seeking partition and separate possession in respect of his share in the suit schedule property i.e. Ac.3-03 guntas in Sy.No.748 situated at Kamareddy, stating that he is successor of his great grandfather late Salveru Papaiah, who is original pattadar of the schedule property, and he is in joint possession along with defendant Nos.1 to 15 and he requested the defendant Nos.1 to 15 to divide the suit schedule property and 2 allot his 1/15th share out of 1/5th share, when they refused the same, he filed the above said suit.
3.2 In the said suit, defendant No.22 filed written statement denying the averments made by the plaintiff inter alia contending that the plaintiff nor defendant Nos.1 to 15 are not in possession of the suit schedule property and the same is not vacant land and it is in exclusive possession of the respective purchasers i.e., defendant Nos.16 to 46, who purchased the same from the defendant No.21, and the said property consisting several pakka RCC buildings constructed by defendant Nos.16 to 46 and plaintiff filed the suit in collusion with defendant Nos.1 to 15 basing upon fabricated document i.e., kasra pahani 1954-55 without disclosing correct facts.
3.3 In the said suit, defendant No.22 filed an application in I.A.No.66 of 2023 seeking appointment of an Advocate Commissioner to make a local inspection of the suit schedule property and its vicinity and to note down the physical features of the structures existing in the said property, on the ground that the plaintiff filed suit dishonestly stating that the suit schedule property is vacant land and the same is in joint possession of the plaintiff and defendant Nos.1 to 15, and with a view to abuse the process of law. The suit schedule property is not vacant land and 3 the same is covered with RCC buildings constructed by defendant Nos.16 to 46 and others. The Court below allowed the above said application by its order dated 03.07.2024.
4. Heard Sri D.Madhava Rao, learned counsel, representing Sri D.Raghavendar Rao, learned counsel for the petitioner/plaintiff and Sri T.S.Murthy, learned counsel for respondent No.1/defendant No.22.
5.1 Learned counsel for the petitioner contended that, the nature of the suit filed by the plaintiff is for partition and separate possession and allotment of his 1/15th share out of 1/5th share in the suit schedule property and the entire burden is upon the plaintiff to prove that the suit schedule property is in joint possession of the plaintiff and defendant Nos.1 to 15 and the said property is vacant land.
5.2 He further contended that when the suit is posted for defendants' evidence, defendant No.22 filed application seeking appointment of an Advocate-Commissioner to make a local inspection of the suit schedule property and note down the physical features of the structures existing in the said property with the help of local Surveyor. The Court below without properly considering the contentions of the plaintiff erroneously allowed the application and appointed an Advocate Commissioner through 4 impugned order dated 03.07.2024 and the same is contrary to law.
5.3 Learned counsel further contended that the parties must prove their case, whether the suit schedule property is vacant land or covered with structures, by producing the necessary evidence rather than through the appointment of an Advocate Commissioner. Defendant No.22 cannot seek appointment of Advocate Commissioner to prove his allegations made in the written statement, with the help of Advocate Commissioner and the same amounts to collection of evidence, which is not permissible under the law.
5.4. In support of his contention, he relied upon the orders passed by this Court in Smt. Aedunuthula Sudha, Sudharani Vs. Aedunuthula Srichandar Reddy and Others (C.R.P. No.1233 of 2022, dated 22.07.2022) and the erstwhile High Court of Andhra Pradesh, Hyderabad in Thalla Sulochana and Thalla Isaac and another (C.R.P. No.137 of 2012, dated 07.02.2012). 6.1 Per contra, learned counsel appearing on behalf of respondent No.1/defendant No.22, vehemently contended that the plaintiff filed suit in collusion with defendant Nos.1 to 15 seeking partition and allotment of his share in the suit schedule property basing on the fabricated document i.e., khasra pahani for the year 5 1954-55, alleging that the suit schedule property is vacant land and he is in joint possession, though the suit schedule property is not vacant land and the same is in exclusive possession of the respective purchasers and defendant Nos.16 to 46, who have purchased from defendant No.21, and the suit schedule property is consisting several pakka RCC buildings constructed by defendant Nos.16 to 46 and others and to prove the same, defendant No.22 filed photographs of existing structures in the suit schedule property and also letter dated 07.12.2015 issued by the Commissioner, MCK showing details of the buildings and Property Tax receipts and other documents.
6.2 He further contended that to prove the factum of existing structures in the suit schedule property, defendant No.22 filed application in I.A. No.66 of 2023 seeking appointment of Advocate Commissioner to make local inspection of scheduled property and to note down the physical features of the structures and to resolve the controversy involved in the suit, the appointment of an Advocate Commissioner is very much required and the Court below has rightly allowed the application. By virtue of the said order, no prejudice would be caused to the plaintiff. In support of his contention, he relied upon the following decisions: 6
i) P.Moosakutty vs. State 1;
ii) Debendranath Nandi vs. Natha Bhuiyan 2;
iii) Vishnudas Manga Bhavani vs. Vooturi Bhaskar 3;
iv) Ponnusamy Pandaram vs. The Salem Vijayapamalai Jangamar Sangam 4;
v) Mukhtiar Singh vs. Tej Kaur 5;
7. Having considered the rival submissions made by the respective parties and after perusal of the material available on record, it reveals that the plaintiff filed suit in O.S. No.7 of 2015 initially on the file of Senior Civil Judge, Kamareddy, for the following relief:
"i) To grant a Preliminary Decree declaring that the Plaintiff is entitled to 1/15th out of 1/5th share in the suit schedule property;
ii) Allot 1/15th share out of 1/5th to the plaintiff, by dividing by metes and bounds and to handover possession of the plaintiff's shares viz. 1/15th share to the plaintiff by appointing a Commissioner and to pass a final decree allotting plaintiff's share in the suit schedule property to the plaintiff and put him in possession of his share.
a) And allot 1/15th share out of 1/5th to Defendant Nos.1 to 3, 1/15th each share out of 1/5th to DefendantNos.4 & 5, 1 AIR 1953 Mad 717 2 AIR 1973 Ori 240 3 ALT 1993 (2) 589 4 AIR 1986 Mad (0) 33 5 LAWS (P&H)-1977-12-27 7 1/10th each share out of 1/5th to Defendant Nos.6 & 7, 1/25th each share out of 1/5th to Defendant Nos.8 to 12, 1/15th each share out of 1/5th to Defendant Nos.13 to 15 and other reliefs."
8. In the suit, plaintiff averred that the suit schedule property is joint family property of the plaintiff and defendant Nos.1 to 15 and when he requested the defendant Nos.1 to 15 for partition and allotment of his respective share, they failed to divide and allot his 1/15th share out of 1/5th share and therefore, he filed the suit. He further stated that the plaintiff and defendant Nos.1 to 15 are in joint possession of the suit schedule property and the same is vacant land. Basing on the said pleading, he paid a fixed Court Fee of Rs.200/- under Section 34(2) of A.P.C.F. & S.V. Act.
9. Defendant No.22 filed written statement denying the averments made in the plaint and contending that plaintiff nor the defendant Nos.1 to 15 are in possession of the suit schedule property and defendant Nos.16 to 20 and 22 to 46, who have purchased from defendant No.21, are in exclusive possession and further stated that the suit schedule property is covered with several pakka RCC buildings constructed by defendant Nos.16 to 46 and their successors.
10. It appears from the record that when the suit is posted for defendants' side evidence, defendant No.22 filed application in I.A. 8 No.66 of 2023 invoking the provisions of Order 26 Rule 9 r/w. Section 151 of C.P.C. seeking appointment of an Advocate- Commissioner to make a local inspection of the suit schedule property and note down its physical features and existing structures. In the said application, it is averred that the suit schedule property consisting several pakka RCC buildings constructed by the various purchasers/defendant Nos.16 to 46 and their successors in interest and in proof of the same, he filed photographs, letter No.A1/2435/2015 dated 07.12.2015 issued by Commissioner, MCK showing existence of various buildings within suit property, property tax receipt dated 30.03.2012 and other documents, and the Court below allowed the said application holding that to resolve the controversy involved in the suit, noting down the physical features of the structures existing in the suit property, does not amount to collection of evidence and the appointment of an Advocate Commissioner for fixing the boundaries with the help of local Surveyor will only meet the ends of justice.
11. It is pertinent to mention here that defendant No.22 has already filed written statement denying the claim of the plaintiff contending that the suit schedule property is not in joint possession of the plaintiff nor defendant Nos.1 to 15 and they are 9 not in possession of the suit schedule property, and the said property is not vacant land. The suit schedule property purchased from defendant No.21 by various purchasers including defendant Nos.16 to 46 and they have constructed pakka RCC buildings and they are in physical possession of the scheduled property and to establish the said factum of existing structures in the suit schedule property, he filed relevant documents i.e., letter No.A1/2435/2015 dated 07.12.2015 issued by Commissioner, MCK, tax receipts and photographs.
12. It is also relevant to mention here that, the party who approaches the Court seeking particular relief, the initial burden lies upon the said party to establish his/her case by producing oral and documentary evidence. In the case on hand, plaintiff has filed suit seeking partition and allotment of his respective share and he has to establish and prove his case that he is in physical possession of the suit schedule property along with defendant Nos.1 to 15 and the schedule property is vacant land as on the date of institution of the suit.
13. On the other hand, defendant No.22 filed application for appointment of an Advocate-Commissioner to make a local inspection of the suit schedule property and to note down the 10 physical features of the structures existing in the suit schedule property with the help of local surveyor.
14. It is pertinent to mention here that defendant No.22 has already filed relevant documents including photographs to show that the suit schedule property is not vacant land and the same is covered with RCC buildings, structures constructed by the defendant Nos.16 to 46 and others, and the defendant No.22 has to prove that the said documents belonging to schedule property, by entering into witness box, especially when the suit is posted for evidence of defendants. If the photographs and other documents filed by the defendant No.22 is going to be established that the same are pertaining to the suit schedule property, there is no reason for appointing Advocate Commissioner to note down the physical features and the structures existing in the suit schedule property. Even before completion of the evidence of defendant No.22, he filed application seeking appointment of an Advocate- Commissioner for noting down the physical features of the suit schedule property, is a pure step aimed at gathering of evidence.
15. It is also relevant to extract the provisions of Order 26, Rule 9 of the Code of Civil Procedure, 1908, which reads as follows: 11
"Order 26 Rules 9 - Commissions to make local investigations;
In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
16. The above said provision clearly envisages that in any suit, the Court deems a local investigation to be required for the purpose of elucidating any matter in dispute, the Court may issue a Commission of such person, as it needs for directing him to make such investigation and to report thereon to the Court.
17. In the case on hand, the Court below has not recorded any reasons why the appointment of Advocate Commissioner is required for adjudication of the dispute, especially when the suit is posted for defendants' evidence. In the event if the Court came to conclusion that to resolve the controversy involved; if the Court is unable to decide the matter basing on the material evidence on record, if the Advocate Commissioner assistance is required to resolve such controversy involved in the suit, the Court may appoint the Advocate Commissioner either suo motu or basing on 12 the application filed by either of the parties and that stage is not yet reached in the present case.
18. In P.Moosakutty (supra), High Court of Madras held that, "the object of the local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had on the spot"
19. In Debendranath Nandi (supra), High Court of Orissa held that, "it's purpose is to elucidate any point which is left doubtful on the evidence taken before the Court".
20. In Vishnudas Manga Bhavani (supra), erstwhile High Court of Andhra Pradesh that, "Commissioner can be appointed even after recording evidence on both sides if circumstances of case warrant such appointment-verification of ground position arose because of denial by defendant's witness of certain facts. Order of lower Court dismissing application as belated vitiated by illegalities and material irregularities."
21. In Ponnusamy Pandaram (supra), High Court of Madras held that, "the object of the local investigation is to collect evidence at the instance of the party who realize on the same and if evidence cannot be taken in the Court but could be taken only from its peculiar nature on the spot", while disposing the matter relating to 13 declining the appointment of local Commissioner, it was opined that, "the right or obligation need not have nexus to the main lis and final lis and final resolution of controversy between the parties."
22. C.R.P.No.1233 of 2022 is dismissed on the ground that the parties have not yet led the evidence and the petitioner/plaintiff has to establish her title and ownership over the suit schedule property and the trial Court has rightly rejected the application seeking appointment of Advocate Commissioner even before determination of the title tantamount to collect the evidence.
23. Another decision in C.R.P.No.137 of 2012, the erstwhile High Court of Andhra Pradesh dismissed the C.R.P. on the ground that the appointment of Advocate Commissioner in a suit for perpetual injunction is not permissible under law, as it amounts to gathering of the evidence.
24. The judgments/orders relied upon by the learned counsel for the respective parties are not applicable to the facts and circumstances of the present case on the ground that the nature of suit filed by the plaintiff is for partition and allotment of his share and the said suit is posted for defendants' evidence. In the meanwhile, defendant No.22 filed application seeking appointment of an Advocate Commissioner to note down the physical features of 14 the scheduled property on the ground that the scheduled property is not vacant land, covered by structures/RCC buildings.
25. It is relevant to place on record that in "Smt.Sughra Begum and others vs. Md.Ismail Khan and others 6", the plaintiff filed suit for partition and separate possession and cancellation of the sale deeds and other reliefs against the defendants. In the said suit, the plaintiff filed application seeking appointment of Advocate Commissioner for noting down the physical features and topography of the suit schedule properties on the ground when the defendant No.4 in the cross-examination denied the cremation of their father and fore fathers in the suit schedule property, more particularly when the graves are existing in the suit schedule property, the Court below dismissed the application on the ground that the plaintiff has already filed photographs evidencing the existence of tombs. Aggrieved by the same, plaintiff filed C.R.P. No.562 of 2020 and the same was dismissed confirming the order of the trial Court holding that the trial Court while dismissing the application held in paras 6 and 7 of the impugned order that, when the photographs reveal the existence of tombs, there is no need for appointing an Advocate Commissioner to note down the existence of tombs.
6 2021(4) ALT 502 (TS) 15
26. In the case on hand, defendant No.22 has already filed photographs and other documents to establish his case that the suit schedule property is not the vacant land and the same is covered with RCC buildings and structures raised by the defendant Nos.16 to 46 and others. Hence, this Court is of the considered view that there is no need to appoint an Advocate Commissioner to note down the existence of the physical features of the structures/buildings in the suit schedule property.
27. For the foregoing reasons, the impugned order passed by the Court below, dated 03.07.2024 in I.A.No.66 of 2023 in O.S. No.7 of 2015 is liable to be set aside and accordingly, set aside.
28. Accordingly, Civil Revision Petition is allowed. No costs.
As a sequel, miscellaneous petitions, pending if any, shall stand closed.
_____________________________ JUSTICE J.SREENIVAS RAO 06th September, 2024 Note: L.R. copy to be marked.
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