Andhra Pradesh High Court - Amravati
Vasupalli Danayya vs Pinnmaraju Srinivas on 6 October, 2023
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
C.R.P.No.1986 of 2023
Between:
Vasupalli Danayya S/o late Durgayya @ Durgappa,
Hindu, aged 35 years, residing at Kapuluppada,
Bheemili Mandal, Visakhapatnam. .. Petitioner
And
Pinnmaraju Srinivas S/o Seshagiri Rao, Hindu,
Aged 38 years, residing at North Extension,
Seethammadara, Visakhapatnam and others .. Respondents
DATE OF JUDGMENT PRONOUNCED: 06.10.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals?
3. Whether Their Ladyship/Lordship wish to Yes/No
see the fair copy of the Judgment?
_________________________
U. DURGA PRASAD RAO, J
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*HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
+ C.R.P.No.1986 of 2023
%06.10.2023
# Vasupalli Danayya S/o late Durgayya @ Durgappa,
Hindu, aged 35 years, residing at Kapuluppada,
Bheemili Mandal, Visakhapatnam. .. Petitioner
Vs.
$ Pinnmaraju Srinivas S/o Seshagiri Rao, Hindu,
Aged 38 years, residing at North Extension,
Seethammadara, Visakhapatnam and others .. Respondents
<GIST:
>HEAD NOTE:
! Counsel for petitioner: Sri P.Rajasekhar
Counsel for respondents: Sri Bodduluri Madhu
? CASES REFERRED:
1) AIR 2012 SC 1727
2) (2016) 3 ALT 477
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HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
Civil Revision Petition No.1986 of 2023
ORDER:
The challenge in this C.R.P. filed under Article 227 of the Constitution of India by the petitioner/plaintiff is to the order in I.A.No.766/2015 in O.S.No.247/2009 passed by learned I Additional Senior Civil Judge, Visakhapatnam dismissing the petition filed by the petitioner seeking appointment of Advocate commissioner to localize the suit property and measure with the assistance of licensed Surveyor and note down its physical features.
2. The petitioner is plaintiff in O.S.No.247/2009 seeking permanent injunction in respect of Ac.0.93 cents of land in Sy.No.294/2. The 1st respondent claims to be in possession of Ac.0.23 cents out of said Ac.0.93 cents in Sy.No.294/2. The trial is under way.
3. At this juncture, the petitioner filed I.A.No.766/2015 seeking appointment of Advocate commissioner. The trial Court having 4 observed that as the suit is essentially one for permanent injunction wherein the plaintiff has to establish his lawful possession, appointing Advocate commissioner for localization of suit property and measuring the same with the help of Surveyor and noting down its physical features will not in any way assist the Court for effective disposal of the suit, rather the appointment of the Advocate commissioner tantamounts to collection of evidence, dismissed the petition.
4. Heard learned counsel for petitioner Sri P.Rajasekhar and Sri Bodduluri Madhu, learned counsel for respondents.
5. In his effort to convince the Court showing the justification for appointment of an Advocate commissioner, learned counsel for petitioner Sri P.Rajasekhar would argue that according to the petitioner, he has been in effective possession and enjoyment of the suit property comprising Ac.0.93 cents of land wherein he raised two sheds for his watchmen and constructed a compound wall around the suit property, whereas, the respondents contend to have purchased Ac.0.23 cents out of the said Ac.0.93 cents and 5 constructed a boundary wall around their property which is strongly opposed by the petitioner, if an Advocate commissioner is appointed to localize and noting down the physical features of suit property, the trial Court will be clearly informed as to whether one boundary wall is in existence around entire suit property or there are two boundary walls and that crucial fact will help the trial Court to adjudicate the suit in a proper and effective manner.
6. Relying upon the decision in Maria Margarida Sequria Fernades and Others vs. Erasmo Jack de Sequeria (Dead) through L.R.s1 learned counsel would argue, as is held by the Hon'ble Apex Court, truth is the glowing star in judicial process and to arrive at the absolute truth and to uphold the saying 'Satyameva Jayate', the Court must follow the modern jurisprudence and try to find out the truth. He would thus submit that in such endeavor, the Court can appoint the commissioner for elucidating the truth. He placed reliance on the decision 1 AIR 2012 SC 1727 6 Mohammed Jaffer Abdul Quadeer Qureshi vs. Aziz-ur- Rehman Qureshi2.
7. Per contra, learned counsel for respondents while supporting the impugned order would submit that as the suit is primarily for perpetual injunction, the burden of proof is on the plaintiff to establish his title and lawful possession over the suit schedule property and it is immaterial whether there existed one or two compound walls in the suit schedule property and even if one or two compound walls are existed thereon, during the localization, the commissioner cannot gather evidence as to who constructed those compound walls. Gathering of such information and incorporating in the report would amount to collection of evidence which otherwise is the duty of the plaintiff to place in the form of evidence for appreciation of the Court. He thus prayed to dismiss the C.R.P.
8. The point for consideration is whether there are merits in the C.R.P. to allow and appoint an Advocate commissioner for 2 (2016) 3 ALT 477 7 localization of the suit property and to record the physical features thereon?
9. Point: Gone through the pleadings and submissions of either party. The suit is filed for perpetual injunction over an extent of Ac.0.93 cents out of Ac.1.04 cents in Sy.No.294/2 of Kapullupada Village. The petitioner/plaintiff claims Ac.0.93 cents out of Ac.1.04 cents. The remaining extent Ac.0.11 cents was said to be acquired by the Government for widening the beach road and the remaining Ac.0.93 cents is said to be in effective possession of plaintiff and due to natural calamities, this land which was originally an agricultural land remained barren, unfit for cultivation and therefore, the plaintiff claims to have constructed two sheds for the residence of his watchmen and also constructed a boundary wall around the property and erected a gate. As per the pleadings of the respondents, the 1st respondent purchased Ac.0.23 cents in Sy.No.294/2 under a registered sale deed dated 30.06.1998 from one Dr.P.Kumar. Earlier the said Dr.P.Kumar along with his relatives including Durgaiah, the father of plaintiff purchased entire Ac.1.04 cents in Sy.No.294/2 through a registered sale deed dated 8 22.06.1981 and later the said Durgaiah and other relatives relinquished their respective shares over the Ac.1.04 cents in favour of Dr.P.Kumar. Thus, whilst the petitioner claims to be in possession of an extent of Ac.0.93 cents in Sy.No.294/2, 1st respondent claims to have been in possession over an extent of Ac.0.23 cents out of Ac.93 cents in Sy.No.294/2. It appears that the trial Court had already taken up evidence of both parties and at that juncture, the petitioner filed I.A.No.766/2015 seeking appointment of an Advocate commissioner which was dismissed by the trial Court holding that the commissioner cannot be appointed for collection of evidence and the appointment of commissioner will not assist the Court in deciding the true controversy involved in the suit.
(a) Therefore, it has now to be seen whether appointment of Advocate commissioner for localization, noting the physical features and measurements of the suit schedule property will in any way assist the trial Court in adjudicating the real controversy i.e., whether the plaintiff has title and lawful possession over the entire extent of Ac.0.93 cents or not.
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(b) Jurisprudence on the appointment of Advocate commissioners particularly in a suit for injunction, is not in drought. In a plethora of decisions it was held that there is no embargo on appointment of Advocate commissioner even in a suit for perpetual injunction, if the circumstances so warrant. The thumb rule is that generally the Courts will be at loath to appoint Advocate commissioner for fishing out the evidence i.e., which of the two parties is in possession of plaint schedule property. Such a fact has to be established by the parties by way of cogent evidence for appreciation of the Court and it is not for the Court to collect the evidence on such fact by appointment of commissioner.
(c) However, in respect of other facts emanating from an injunction suit, the Court can exercise its discretion to appoint Advocate commissioner. For instance, in a suit for injunction if physical features alleged to be effaced by one of the parties and in such cases, the appointment of commissioner may help in only recording the existing features without further stating as to how such physical features came into existence and who created them at what point of time etc. Similarly, in a suit for injunction, 10 demarcation of boundaries may sometimes be necessitated for effective disposal of the suit. Then the commissioner at the discretion of the Court can be appointed. Sometimes, in a suit for injunction measurements of the suit property may be required to know the exact extent of the suit property. Any amount of documentary evidence may not give the correct status of the property on ground and in such circumstances, the Court can consider appointment of commissioner. These instances are only inclusive but not exhaustive. However as already noted supra, before appointing an Advocate commissioner, the Court has to consider whether such appointment will lead to collection of evidence which the parties can by other mode of evidence place before the Court or such appointment of Commissioner will place a clear picture for effective adjudication of the real controversy in the matter. In the former case, the Court may not appoint a commissioner but in the later the Court may consider for appointment of commissioner. In these lines, there are a number of decisions. One such decision rendered by a learned Single Judge of the High Court of Judicature at Hyderabad for the State of 11 Telangana and the State of Andhra Pradesh is in Bandi Samuel and others vs. Medida Nageswara Rao3. In the said decision learned Judge has referred a number of judgments which dealt with appointment of Advocate commissioner in injunction suits. The judgments cited by the petitioner in the instant case also of the same ilk.
10. With the jurisprudence thus gained as above, when the case on hand is considered, we will find no such expediency to appoint an Advocate commissioner as sought for by the petitioner/plaintiff. It being a suit for perpetual injunction, as rightly observed by the trial Court, the burden of proof is always on the plaintiff to establish his lawful title and possession over the suit schedule property. The identity, its location and extent of the suit schedule property is not in controversy. Rather the defendant claims some extent of the property over the suit property. Having regard to the nature of the controversy, appointment of commissioner for localization taking measurements and noting physical features, in my considered view will not advance any purpose in an 3 2017(1) ALT 493=MANU/AP/0896/2016 12 appreciable degree for adjudication of the real controversy in the suit. Therefore, trial Court's order dismissing the petition does not suffer the vices of illegality, irregularity and the jurisdictional error to warrant interference.
11. Accordingly, the C.R.P. is dismissed. No costs.
As a sequel, interlocutory applications pending, if any, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J 06.10.2023 NNN