Andhra Pradesh High Court - Amravati
Dandu Venkata Satya Suryanarayana Raju vs Bomidipati Raja Kamala on 5 December, 2022
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.2269 of 2022
Between:
Dandu Venkata Satya Suryanarayana Raju,
S/o late Gopala Raju, aged about 70 years,
R/o D.No.67-11-2/15D, Road No.98,
L.B.Nagar, Kakinada.
... Petitioner.
Versus
Bomidipati Raja Kamala, W/o Bomidipati Sri
Vallabha Sastry, aged 67 years, R/o Flat No.7,
III Floor, B.R.Complex, Krishna Nagar,
Maharanipeta, Visakhapatnam and another.
... Respondents.
Counsel for the petitioner : Sri A.S.C.Bose
Counsel for respondents : ---
ORDER
Plaintiff in the suit filed the above revision against the order dated 13.06.2022 in I.A.No.32 of 2022 in O.S.No.415 of 2019 on the file of V Additional Junior Civil Judge, Kakinada.
2. Plaintiff filed the suit O.S.No.415 of 2019 seeking perpetual injunction.
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3. In the plaint, it was contended interalia that schedule property was unclaimed and locked property situated contiguous to the south of Plot No.14 in L.P.No.21 of 1991; that originally one Saanji Venkata Subba Rao along with others purchased land in an extent of Ac.1.50 cents by way of registered sale deed dated 22.04.1972 and later divided the same into plots; that plot No.16 fell to the share of S.V.Subba Rao; that schedule property is unclaimed and locked property situated contiguous to the south of plot No.16 and is in possession of S.V.Subbarao; that he died intestate on 16.02.1990 and his legal heirs succeeded to plot No.16 and contiguous plot; that unapproved layout was approved by the Director of Town and Country Planning vide L.P.No.21 of 1991 dated 26.07.1993; that plot No.16 was changed to plot No.14; that legal heirs of S.V.Subbarao i.e. Saanji Venkata Naga Vara Prasad and other sold the plot to the plaintiff under a registered sale deed dated 25.02.2002 and handed over item No.1 along with item No.2 of plaint schedule property; that item No.1 is plot No.14 and item No.2 is unclaimed and locked property; that in the years 2011, plaintiff got constructed RCC building in the schedule 3 property apart from shed and has been residing therein; that in the year 2014 due to cyclone, two grown up trees collapsed and damaged the roof and hence, the plaintiff replaced the roof with GI sheets; that local authorities laid road on the southern side of suit schedule property and thereby unclaimed barren land got access; that on 22.04.2019, defendants came with JCB and started cleaning, earth filling and leveling the entire barren land in between suit schedule property and newly laid road upto the compound wall on southern side of suit schedule property and also damaged the compound wall, so as to trespass into item No.2 of schedule property; that plaintiff along with neighbours resisted their illegal acts and eventually, filed the suit seeking injunction.
4. Defendants filed written statement and contended interalia that sale deed of plaintiff does not indicate item No.2 of schedule property; that plot No.14 in L.P.No.21 of 1991 is admeasuring 263 square yards; that on 12.08.1975 1st defendant purchased an extent of 1210 square yards of site in S.No.145, out of 2420 square yards; that northern side boundary owner is shown as Yarramilli Narasimha Rao and others; that Y.Narasimha Rao and other laid out the property 4 into house plots; that as per the sale deed of 1st defendant, towards north of item No.2 of plaint schedule property, the property of Y.Narasimha Rao is situated; that plaintiff with ulterior motive to grab item No.2 of plaint schedule property claimed the same as unclaimed and locked property, though the same is in exclusive possession of 1st defendant; that 2nd defendant, who is a doctor, after retirement settled at Visakhapatnam and 1st defendant being wife of 2nd defendant also residing in Visakhapatnam; taking advantage of defendants 1 and 2 as absentee landlords, plaintiff tried to interfere with property and in fact, partly encroached into item No.2 of plaint schedule property and eventually, prayed to dismiss the suit.
5. Pending the suit, defendants filed I.A.No.32 of 2022 under Order XXVI Rule 9 r/w Section 151 of CPC to appoint an advocate commissioner to localize item No.1 of plaint schedule property with reference to title deeds of both parties with the assistance of Kakinada Urban Mandal Surveyor.
6. In the affidavit filed in support of the petition, it was contended interalia that the suit is coming up for cross 5 examination of P.W.1 and Exs.A-1 to A-6 were marked; that in view of specific stand in written statement that plaintiff with ulterior motives to grab item No.2 of plaint schedule property, which is covered by sale deed of 1st defendant dated 12.08.1975, as unclaimed and locked property, though the same is in exclusive possession of 1st defendant and plaintiff partly encroached item No.2 of plaint schedule property, localization of item No.1 of plaint schedule property with reference to title deeds of both parties is necessary; that defendants applied for survey of property and adjoining properties with reference to title deeds by Kakinada Urban Surveyor, a notice was served on the plaintiff, but he did not cooperate for the survey on the ground that suit is pending and hence, survey of property could not be proceeded further.
7. Respondent/plaintiff filed counter opposing the application.
8. By order dated 13.06.2022, the Court below allowed the application appointing the advocate commissioner. Challenging by the same, the present revision is filed. 6
9. Sri A.S.C.Bose, learned counsel for the petitioner would submit that suit is filed seeking perpetual injunction, in which the defendants filed petition to appoint an advocate commissioner to localize item No.1 of schedule property to gather evidence and the same is impermissible. He would submit that item No.1 of schedule property is admeasuring 263 square yards and RCC building was constructed and item No.2 is admeasuring 133 square yards and ACC sheet shed is there and thus, there is no need to localize the schedule property. He also would submit that in a suit for injunction, plaintiff has to prove his possession over the property and normally Courts will not appoint advocate commissioner to gather evidence.
10. Now the point for consideration is:
Whether the Court below by exceeding its jurisdiction appointed the advocate commissioner?
11. Suit O.S.No.415 of 2019 is filed seeking perpetual injunction. Item No.1 of schedule property, according to the plaintiff was purchased under a registered sale deed dated 25.02.2002. Item No.2 of schedule property, according to the 7 plaintiff, is situated towards south of item No.1 as unclaimed and locked property and the same has been in possession and enjoyment of the predecessors of vendors of plaintiff; that after plaintiff purchased the property, he constructed RCC building and shed therein. 1st Defendant in the written statement contended that an extent of 1210 square yards in S.No.145, out of 2420 square yards was purchased by 1st defendant under a registered sale deed dated 12.08.1975 and northern boundary in the said sale deed is shown as site sold to Yarramilli Narasimha Rao and others.
12. Going by the plaint averments, lay out was laid by Saanji Venkata Subba Rao and others in the property purchased by them. Though the plaint does not indicate the name of Yarramilli Narasimha Rao, in fact, S.V.Subbarao, and Yarramilli Narasimha Rao and others laid the lay out. In the layout plot No.16 was allowed to S.V.Subbarao and later the same was renumbered as plot No.14. Plaintiff also contended that item No.2 of schedule property is unclaimed and locked property. 1st Defendant asserted that the alleged unclaimed and locked property is part of property purchased by 1st defendant under a registered sale deed. When there is 8 dispute regarding encroachment of property, in the interests of both parties, localization of property is necessary.
13. In Velaga Narayana and Ors. Vs. Bommakanti Srinivas and Ors.1, the composite High Court of Andhra Pradesh held thus:
"13. Under Rule of Order 26 in any suit in which the Court deems a local investigation is necessary or proper for the purpose of elucidating any matter in dispute, it can issue a commission. Though issuing commission is discretionary, the Court has to exercise discretion in an appropriate and judicious manner. The purpose and object of local investigation under Rule 9 is to have the evidence from the spot itself to have a correct and proper understanding of the dispute between the parties. The local investigation report submitted by the commissioner enables the Court to make a correct assessment of evidence on record. When the Court is of the opinion that the material on record requires elucidation, it would be just and reasonable to issue a commission for the said purpose. A commission at the instance of one of the parties to find out as to who is in possession of the property cannot be issued as it enables the party seeking appointment of commissioner to collect or gather evidence. But, where there exists a dispute regarding suit property, the Court has to necessarily issue a commission with the assistance of a surveyor, otherwise, it would be highly difficult for the Court to completely and effectively resolve the dispute and issuing such commission would not amount to collection of evidence. Commission for the said purpose can be issued prior to or after the parties let in their evidence."
14. In Nambada Varaha Narasimhulu vs. Karanam Dalamma2, the composite High Court of A.P. held thus: 1
2014 (4) ALT 152 9 "Having considered the rival submissions, this Court is of the view that it cannot be inferred that the appointment of Advocate Commissioner/Surveyor for specifically localizing the plaint schedule vacant site and identifying in which survey the disputed property is located cannot be done at the instance of the parties to the dispute. As a matter of fact, the only method by which the identification of the property can be made is by way of ordering conduct of survey particularly when the dispute between the parties is with regard to which survey number the disputed property is situated in."
15. In K. Dayanand vs. P. Sampath Kumar3, the composite High Court of Andhra Pradesh referred to the judgment in J.Satyasri Rambabu Vs. A. Anasuya and Anr. (AIR 2005 AP 529), wherein this Court at paragraph No. 6 held thus:
"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. It is relevant to note that Order XXXIX Rule 7 of the Code of Civil Procedure empowers the Court to make an order for detention, preservation or inspection of any property, which is the subject matter of the suit, if the Court feels that such action is necessary or expedient for the purpose of obtaining full information or evidence. In the 2 2014 (6) ALT 94 3 2015 (2) ALD 319 10 light of the above said provision, I am unable to agree with the contention of the learned Counsel for the petitioner that the Court below has committed an error in appointing an Advocate Commissioner. As already noted above the specific plea of the plaintiffs is that in spite of the order of temporary injunction the defendant has been taking steps to alter the nature of the suit schedule land. In the circumstances, the Court below having considered the entire material on record has rightly appointed an Advocate Commissioner. The said order cannot be said to be vitiate on account of any patent error of fact or law and therefore, does not warrant interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India."
16. A perusal of above referred expressions of this Court would make it clear that though in a suit for injunction, when there is dispute regarding identity and encroachment of property, localization of property is necessary. In fact, localization of property would resolve the dispute between the parties amicably. Apart from that, defendants in the suit tried to get the property surveyed by a surveyor, plaintiff objected the same. In those facts and circumstances of the case, appointment of an advocate commissioner to localize item No.1 of schedule property with reference to sale deeds of both parties and it does not amount to gathering of evidence. Hence, this Court is of the considered opinion that there is no illegality in the order passed by the trial Court. 11
17. The scope of revision under Article 227 of the Constitution of India was considered by Hon'ble Apex Court in Surya Dev Rai vs. Ram Chander Rai and Ors.4. The order of the lower is neither perverse nor amounts to failure to exercise jurisdiction vested with it. Hence, the order of the trial Court dismissing the petition does not call for interference of this Court under Article 227 of the Constitution of India.
18. Accordingly, the Civil Revision Petition is dismissed at the admission stage. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 5th December, 2022 PVD 4 (2003) 6 SCC 675