Telangana High Court
Sri.Mohammed Iqbal vs Bochu Ameer on 23 August, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL REVISION PETITION No.1618 of 2024
ORDER:
Aggrieved by the order dated 04.12.2023 in I.A.No.396 of 2023 in O.S.No.59 of 2023 (hereinafter will be referred as 'impugned order') passed by the learned Junior Civil Judge, Kalwakurthy, the defendant filed the present Civil Revision Petition to set aside the impugned order.
2. The brief facts of the case are that the plaintiff filed O.S.No.59 of 2023 before the learned Junior Civil Judge, Kalwakurthy for declaration of title, recovery of possession and perpetual injunction in respect of the suit schedule property. Apart from the suit, the plaintiff also filed I.A.No.396 of 2023 under Order XXVI Rule 9 of the Code of Civil Procedure to appoint an Advocate Commissioner for local inspection, conducting survey, demarcation and measuring the lands in Sy.No.395/EE and 360/AA of Marchala Village, Kalwakurthy Mandal, Nagarkurnool owned and possessed the by both the parties respectively with reference to their title deeds. The defendant filed detailed counter opposing the said application, however, the learned Junior Civil 2 MGP,J CRP_1618_2024 Judge allowed the said application on 04.12.2023. Aggrieved by the same, the defendant 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 seen from the record, after receipt of summons, the defendant filed written statement along with counter claim, wherein he disputed the identity and location of the suit schedule land. The claim of the defendant is that he is the owner and possessor of land admeasuring Ac.01.31 guntas in Sy.No.360/AA with specific boundaries in Marchala Village, Kalwakurthy Mandal, Nagar Kurnool District having purchased the same from Dokka Balamaisaiah in the year 2013 and that he is intending to construct holy shrine in his land. It is the specific contention of the plaintiff that he has been fighting for his land in sy.No.395/EE for the past five years by approaching several authorities and courts but the defendant is making illegal construction in the name of a Dargah in the suit schedule property stating to the be land purchased by him vide document No.10607/2013 dated 09.10.2013, however, in fact the said property belongs to the 3 MGP,J CRP_1618_2024 plaintiff. The defendant admitted in his counter that the plaintiff is the owner of land admeasuring Ac.1.14 guntas in Sy.No.395/EE of Marcharla Village but he is denying that plaintiff is the owner of the suit schedule property.
5. As seen from the rival contentions, it appears that though the lands of respective parties are in separate survey numbers i.e., 395/EE and 360/AA, both the parties are claiming the same property. Thus, there is a dispute with regard to identification of the property. The trial Court has acceded to the request of the plaintiff to appoint advocate commissioner only on the ground that the Court is expected to consider all the evidence on record, before it finally decides the suit. From the above observation, an inference can be drawn that the trial Court is of the view that Advocate Commissioner report forms part of the evidence.
6. It is to be seen that though report of Advocate-Commissioner forms part of the records, it is not binding on Court and in fact advocate commissioner report is to be appreciated along with other evidence available on record in a given case. In M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit, Pachama, District 4 MGP,J CRP_1618_2024 Sehore and Others v. M/s. Modi Transport Service 1 the Honourable Apex Court observed as under:
"33. Order XXVI Rule 9 of the Code gives wide powers to the court to appoint a commissioner to make local investigations which may be requisite or proper for elucidating any matter in dispute, ascertaining the market value of any property, account of mesne profit or damages or annual net profits. Under Order XXVI Rule 11, the court has the power to issue a commission in a suit, in which examination of adjustment of accounts is necessary, to a person as it thinks fit directing him to make such examination or adjustment. When a court issues such a commission to such a person, it can direct the commissioner to make such an investigation, examination and adjustment and submit a report thereon to the court. The commissioner so appointed does not strictly perform a 'judicial act which is binding' but only a 'ministerial act'. Nothing is left to the commissioner's discretion, and there is no occasion to use his judgment or permitting the commissioner to adjudicate and decide the issue involved; the commissioner's report is only an opinion or noting, as the case may be with the details and/or statement to the court the actual state of affairs. Such a report does not automatically form part of the court's opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. Hence, there is neither abdication nor delegation of the powers of functions of the court to decide the issue. Sometimes, on examination of the commissioner, the report forms part of the record and evidence. The parties can contest an expert opinion/commissioner's report, and the court, after hearing objections, can determine whether or not it should rely upon such an expert opinion/commissioner's report. Even if the court relies upon the same, it will merely aid and not bind the court. In strict sense, the commissioners' reports are 'non-adjudicatory in nature', and the courts adjudicate upon the rights of the parties"
7. In Mohammed Jaffer Abdul Qadeer Qureshi v. Aziz-Ur- Rehman Qureshi and Others 2 the High Court of Judicature for the State of Telangana and the State of Andhra Pradesh held as under:
1 2022 Live Law (SC) 471 2 2016 (3) ALD 38 5 MGP,J CRP_1618_2024 "Dealing next with the contentions that a Commissioner cannot be appointed for gathering evidence and that the existence or otherwise of a road, which is borne out by the Hiba and the surveyors report, can be proved by adducing oral evidence by both the sides and that, therefore, the commissioner cannot be appointed, what is to be noted is that the law is well settled that for noting down physical features a Commissioner can be appointed. The existence or otherwise of a road, which is being described as C schedule property, is a physical feature is not in dispute. Therefore, this contention has no substance.
Dealing lastly, with the contention that the report of the Commissioner is not going to serve any purpose, be it noted that issuance of Commissions is dealt with in Section 75 of the Code, which deals with 'Incidental Proceedings'; whereas the other interlocutory proceedings like grant of temporary injunctions and appointment of Receivers etcetera are dealt with in Section 94 of the Code which deals with 'Supplemental Proceedings'. Supplemental proceedings are separate proceedings in a Original action, in which the Court is called upon to exercise jurisdiction in aid of the judgment in action. Incidental Orders are being necessary complements in the main order without which the matter would be incomplete or ineffective. [vide M.A. Mohammed Ali v. R. Ramadoss, AIR -1966 1 Mad. 441]. Thus, incidental orders are complementary in nature and are intended to assist the Court in arriving at a just decision in the case and is unlike supplemental orders. The request for appointment of a Commissioner for noting down the physical features of a property, in the well considered view of this Court, by no stretch of imagination can be called as an attempt to gather evidence."
8. Thus, it is clear that the report filed by an Advocate Commissioner is non-adjudicatory in nature and the Courts are not bound by such report and such report will only aid/assist the Court in arriving at an appropriate conclusion. Hence, by considering the principle laid down in the above said decision, this Court is of the opinion that the trial Court erred in considering the advocate commissioner report as evidence. It is clear that the exercise of appointment of an Advocate Commissioner cannot be 6 MGP,J CRP_1618_2024 termed as collection/gathering of evidence by any stretch of imagination.
9. It is the contention of the learned counsel for the defendant that the trial Court erred in observation that the respondent gathering the evidence by way of Advocate Commissioner's report without filing any proof, except his gift deed executed by his mother. It is further contended that the trial Court erred that the present application is filed in earlier stage, even though court will permit at the stage of trial only. However, on a careful perusal of entire impugned order, there are no such observations made by the trial Court in the impugned order as contended by the learned counsel for the defendant.
10. Now coming to the aspect as to whether an Advocate Commissioner can be appointed or not in the present case, it is evident that there is a dispute between the parties with regard to identification of the property. Learned counsel for the defendant relied upon a decision in A. Gopal Reddy v. R. Subramanyam Reddy 3 wherein the High Court for the erstwhile State of Andhra Pradesh observed that the appointment of a Commissioner that too 3 2013 (4) ALD 347 7 MGP,J CRP_1618_2024 for noting the physical features before commencement of trial is a pure step aimed at gathering of evidence. In Badana Mutyalu and another v. Palli Appalaraju 4 the High Court for the erstwhile State of Andhra Pradesh opined that Advocate Commissioner may be appointed to localize the disputed land with the assistance of qualified surveyor but not to determine the possession of any party.
11. It is further contention of the learned counsel for the defendant that the trial Court ought to have seen that two property schedules and boundaries are different as per their respective pleadings and documents of the petitioner and respondent. It is to be seen that only when there is a dispute with regard to boundary, the probability of appointing an advocate commissioner would arise. In the case on hand, the defendant is admitting that the plaintiff is the owner of land admeasuring Ac.1.14 guntas in Sy.No.395/EE of Marcharla Village but no the suit schedule property. Thus, the necessity of appointing an Advocate Commissioner arose to clear the dispute with regard to the suit schedule property. Once an Advocate Commissioner is appointed the ambiguity with regard to the boundaries of suit schedule 4 2013 (4) Civ CC 721 8 MGP,J CRP_1618_2024 property would be cleared. It would also give clarity as to whether the suit schedule property and the property as claimed by the plaintiff are one and the same or not.
12. The learned counsel for the defendant contended that the trial Court erred in the provision of order XXVI Rule 9 of the Code of Civil Procedure with regard to the same cause of action in respect of the same relief. When already a survey report is available, there is no necessity of appointing another Advocate Commissioner again for re-survey of the same land, however, when survey report is not satisfactory, an Advocate Commissioner may be appointed. As can be seen from the averments of the counter filed by the defendant, on the application of plaintiff, a survey was conducted on 27.09.2019 by observing that Dargah is situated in sy.No.395. The defendant in his counter contended that in the earlier report/panchanama, the names of neighbouring land owner and their presence were not revealed. Even as per the contention of the defendant, when the defendant disputed the said report/panchanama, its validity and genuineness, the plaintiff has come up with a plea to appoint Advocate Commissioner. In the present case, the earlier panchanama/survey was conducted in 9 MGP,J CRP_1618_2024 the year 2019 i.e., much prior to filing of O.S.No.59 of 2023. The cause of action for the plaintiff to file O.S.No.59 of 2023 is pertaining to the year 2023. Thus, there is a scope of changes taking place in regard to suit schedule property and the surrounding areas during this span of four years. Since the panchanama/survey was conducted much earlier to filing of O.S.No.59 of 2023 and since the cause of action is pertaining to the year 2023 and since the defendant is also not satisfied with the earlier report/panchanama, there is no bar for the plaintiff to seek appointment of an Advocate Commissioner to conduct survey, demarcation and measurement of lands of the parties in Sy.No.395/EE and 360/AA.
13. In Haryana Waqf Board v. Shanti Sarup and others 5 the Honourable Supreme Court observed that it is appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 Rule of the Code of Civil Procedure in case of demarcation of the disputed land. In Smt. P. Sreedevi v. IVLN Venkata Lakshmi Narasimha Prasad 6 this Court observed that when there is a dispute of localization or 5 2008 (8) SCC 671 6 2020 (4) ALT 433 (D.B.) 10 MGP,J CRP_1618_2024 demarcation of property, the best course of action is to appoint an Advocate Commissioner/Surveyor for localization.
14. It is to be seen that Section 75 of the Code of Civil Procedure deals with appointment of Advocate-Commissioner and envisages that a Commissioner can be appointed to aid the Court. Having regard to the provision under Order XXVI Rule 9 of the Code of Civil Procedure, it cannot be always opined that advocate commissioner is appointed only for the purpose of collection of evidence. Any Advocate-Commissioner appointed by any Court of law would execute warrant issued for noting down the physical features of the disputed property, only after issuance of notice to both the parties fixing the date and time of inspection. The Advocate-Commissioner would inspect the disputed property at all times in the presence of the parties to the suit or their authorized representatives including their counsel except in cases, where such parties themselves restrain from making their presence in spite of issuance of notice. Further, law enables the parties to the proceedings to file objections to the Commissioner's report after it is submitted to the Court of law on execution of warrant. Further, the report that is going to be filed by the Advocate Commissioner 11 MGP,J CRP_1618_2024 can be subjected to cross examination during the course of trial. Such being the case, it cannot be held that only for the purpose of collection of evidence, the plaintiff moved application for appointment of Advocate-Commissioner.
15. The grounds urged by the defendant in this Civil Revision Petition are not satisfactory and the learned Junior Civil Judge after considering the rival contentions, passed an order, which do not need any interference of this Court by invoking Article 227 of the Constitution of India, more particularly when the impugned order does not suffer from any irregularity or illegality. Thus, there are no merits in this Civil Revision Petition, which is devoid of merits and thereby the same is liable to be dismissed.
16. 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: 23.08.2024 AS