Telangana High Court
Avula Anjamma vs Vasantha Laxmamma on 9 August, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL REVISION PETITION No.1683 of 2024
ORDER:
Aggrieved by the dismissal order dated 19.04.2024 in I.A.No.136 of 2024 in O.S.No.239 of 2018 (hereinafter will be referred as 'impugned order') passed by the learned Junior Civil Judge, Kalwakurthy, the plaintiff has filed the present Civil Revision Petition to set aside the impugned order.
2. The brief facts of the case are that the sole plaintiff, who is the revision petitioner herein, has filed O.S.No.239 of 2018 on the file of learned Junior Civil Judge, Kalwakurthy for partition and separate possession and cancellation of documents against the eight defendants, who are the respondents herein. During the pendency of the suit, the plaintiff has filed I.A.No.136 of 2024 under Order XXVI Rule 9 of the Code of Civil Procedure seeking appointment of Advocate Commissioner for measurement with the help of surveyor by noting down the boundary of the suit schedule property as well as note down the physical features of the suit schedule property. The defendants have filed detailed counter by opposing the application filed by the plaintiff under Order XXVI 2 MGP,J CRP_1683_2024 Rule 9 of the Code of Civil Procedure. On hearing both the sides, the trial Court dismissed the application on the ground that the plaintiff failed to satisfy the court in appointing Advocate Commissioner. Aggrieved by the same, the plaintiff has preferred the present Civil Revision Petition to set aside the impugned order.
3. Heard both sides and perused the record including the grounds of revision.
4. As can be seen from the plaint averments, the suit schedule properties are ancestral properties of the parties and originally Golla Singadu is the original owner of the suit schedule properties. The plaintiff is claiming 1/5th share by metes and bounds in the suit schedule properties. Originally the suit was filed for partition and separate possession in respect of suit schedule properties. But during the pendency of the suit, defendant Nos.1 to 5 alienated part of the suit schedule property in favour of defendant No.6, who was subsequently impleaded in the suit.
5. The contention of the plaintiff before the trial Court as well as this Court is that to avoid the ambiguity and for proper adjudication of the suit it is necessary to appoint an Advocate 3 MGP,J CRP_1683_2024 Commissioner for measurement with the help of surveyor, as well as to note down the physical features of the subject property. The defendants contended that though plaintiff is alleging that she is in joint possession of the suit schedule property along with the defendants, she failed to furnish the boundaries of the suit schedule property in the plaint. Admittedly, as can be seen from plaint averments, the plaintiff has not mentioned the boundaries of the suit schedule property. In this regard, learned counsel for the plaintiff relied upon a decision in E. Achuthan Nair v. P. Narayanan Nair and another 1, wherein it was observed by the Honourable Supreme Court that even if the plaintiff himself is uncertain about the precise boundary appointment of Commissioner is proper. In the above said decision there was dispute between the parties with regard to the precise boundary between the land of the plaintiff and the land of the defendant. Moreover, in the above said decision, the suit was filed by the plaintiff for demarcation of the property and other reliefs. But in the present case, there is no dispute with regard to demarcation or boundary dispute between the parties. The plaintiff, who is the revision petitioner herein has filed suit for partition against the 1 (1987) 4 Supreme Court Cases 71 4 MGP,J CRP_1683_2024 defendants. It is not the case of the plaintiff that the defendants have encroached portion of the suit schedule property and for ascertaining the same there is a need to appoint Advocate Commissioner. When there is no dispute with regard to encroachment or with regard to precise boundary between the lands of the parties, the question of appointing an Advocate Commissioner does not arise. Hence, the principle laid down in the above said decision cannot be made applicable to the facts of the present case.
6. Though the suit was filed in the year 2018, the plaintiff has filed the application for appointment of Advocate Commissioner in the year 2024. As can be seen from the averments of the affidavit filed by the plaintiff before the trial Court in I.A.No.136 of 2024, except contending that the suit can be adjudicated in proper perspective manner if an Advocate Commissioner is appointed, the plaintiff has not assigned any other valid reason as to why Advocate Commissioner is to be appointed. It is brought to notice of this Court that the plaintiff has filed her chief examination affidavit before the trial Court on 16.11.2023 and Exs.A1 to A17 were marked apart from Ex.C1. Thus, trial has already 5 MGP,J CRP_1683_2024 commenced before the trial Court in O.S.No.239 of 2018 and the case was coming up for cross examination of plaintiff, who examined herself as PW1. At this juncture, the plaintiff has filed I.A.No.136 of 2024 to appoint Advocate Commissioner. Admittedly and as stated supra, the plaintiff has not specified the boundaries to the suit schedule properties in the plaint. It appears that the plaintiff is intending to find out the boundaries to the suit schedule properties by way of appointment of Advocate Commissioner and it is nothing but collection of evidence. If the suit is filed for fixing boundaries by the Court, then appointment of advocate commissioner would serve purpose to decide the real controversy between the parties but it is not even the case of the petitioner that schedule property is not demarcated. In the present case, the suit is not filed for fixing of boundaries by the Court and in fact the suit is for partition and separate possession. Demarcation of land involves physically indicating the edges or lines that separate one property from another, typically through the use of boundary markers, fences, or surveying techniques. The question of demarcation arises only when there is a dispute with regard to encroachment of land belonging to others. In fact, as can be seen from the averments of the affidavit filed in support of the petition, 6 MGP,J CRP_1683_2024 there is no grievance at all to the plaintiff for filing the petition for appointment of Advocate Commissioner and thereby there is no cause of action for the plaintiff to file the said petition.
7. Learned counsel for the defendants relied upon a decision in Dhondiram Nivrutti Pawar (since deceased) v. Laxman Khashaba Pawar and others 2 wherein the High Court of Bombay observed that the machinery of the Court cannot be used for the purpose of collecting evidence, in order to enable the plaintiffs to prove the facts on the basis of which they are claiming the relief. Further, in Rabiya Basheer Ali v. C. Devandra Prasad 3 the High Court of Madras observed that a party to the proceeding cannot collect material or evidence by appointing Advocate Commissioner. In Sarala Jain v. Sangu Gangadhar 4 the High Court of Andhra Pradesh observed that if the suit schedule property is demarcated appointment of an Advocate Commissioner is wholly unnecessary and it is beyond the scope of the suit.
8. It is settled law that appointment of advocate commissioner is a discretionary power of the Court and such power has to be 2 W.P.No.1196 of 2017 decided on 23.01.2018 3 CRP (NPD) Nos.800, 844 & 845 of 2010 decided on 19.05.2010 4 CRP No.5837 of 2015 decided on 19.02.2016 7 MGP,J CRP_1683_2024 exercised in a judicious and sound manner. The Trial Court on considering the rival contentions and by exercising the discretion has rightly dismissed the application of the plaintiff seeking appointment of Advocate Commissioner.
9. Furthermore, in M/s. Puri Investments v. M/s. Young Friends And Company & others 5 the Apex Court observed as under:
"13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Constitution of India. This is impermissible. The finding of the High Court that the appellate forum's decision was perverse and the manner in which such finding was arrived at was itself perverse."
10. In view of the above facts and circumstances and considering the principle laid down in the above said decision, this Court is of the considered opinion that the trial Court has exercised its discretionary power in passing the impugned order and moreover, the revision petitioner/plaintiff failed to establish that the impugned order passed by the trial Court suffers from any 5 Civil Appeal No. 1609 OF 2022 (arising out of SLP (C) No. 6516/2019) decided on 23.02.2022 8 MGP,J CRP_1683_2024 irregularity or infirmity. In such circumstances, this Court cannot interfere with the findings of the trial Court by exercising the power under Article 227 of the Constitution of India. Therefore, the Civil Revision Petition is liable to be dismissed.
11. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_____________________________ JUSTICE M.G.PRIYADARSINI Date: 09.08.2024 AS