Telangana High Court
Smt. Aedunuthula Sudha Sudharani vs Aedunuthula Srichandar Reddy And 5 ... on 22 July, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
THE HON'BLE JUSTICE G. SRI DEVI
Civil Revision Petition No.1233 of 2022
ORDER:
The present Civil Revision Petition has been filed by the plaintiff under Article 227 of the Constitution of India being aggrieved by the Order dated 03.06.2021 passed by the learned Principal Senior Civil Judge, Warangal, whereby the learned trial Court has dismissed the application filed by the plaintiff/petitioner under Order 26 Rule 9 r/w. Section 151 of Civil Procedure Code in I.A.No.594 of 2018 arising out of O.S.No.901 of 2012.
2. Admittedly, the plaintiff/revision petitioner has filed the suit for declaration of title and recovery of possession of land admeasuring 2,000 square yards being part of Sy.No.497 (old) corresponding to Sy.No.497/A (New) (abutting the main road leading from Parkal to Bhupalpally) situated at Regonda Village and Mandal, Warangal District which is suit schedule property. The plaintiff also prayed for mandatory injunction for demolition of illegal structures raised by the respondent No.2 and running the petrol bunk under the name and 2 style of Highway H.P. Petrol Pump together with other reliefs.
3. The defendants contested the said suit and filed the written statement. During pendency of the suit, the plaintiff/revision petitioner filed an application under Order 26 Rule 9 r/w Sec.151 of the Civil Procedure Code, 1908, with a prayer to appoint an Advocate-Commissioner to note down the physical features of the suit schedule property, measure the suit schedule property i.e., the area covered under petrol pump being run by the respondent No.2; note down the boundaries of suit schedule property and find out whether it forms part of Sy.No.497(Old) corresponding to Sy.No.497/A(New) or not; Measure the entire land covered by Sy.No.497/A(New), draw sketch map together with entire land in the suit survey number and show the exact place where the suit schedule property is located i.e., the land covered by the said petrol pump with the help of Assistant Director, Survey and Land Records, Warangal and to submit the report.
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4. The said application filed by the plaintiff was opposed by the defendant Nos.4 to 6 stating that the suit schedule property neither belongs to the petitioner nor her husband; that the boundaries shown are false and incorrect and not existing on the spot; there is no documentary evidence submitted by the plaintiff. It is further contended that the petitioner is required to prove her case to substantiate by oral and documentary evidence but not in the present manner by seeking appointment of an Advocate- Commissioner to collect the evidence. As such, the application is neither maintainable in law nor on facts. It is also contended that the relief sought under the prayer for measurement of the land and to show the exact place as claimed reveals that the petitioner is relying for collecting the evidence to strengthen the alleged claim of the petitioner. Accordingly, prayed for dismissal of the petition with costs.
5. The trial Court taking into consideration the case of both parties, dismissed the said petition filed by the plaintiff observing that the plaintiff has filed the petition to 4 gather evidence through Advocate-Commissioner and the same is not permissible.
6. Being aggrieved by the said order, the present Civil Revision Petition has been filed by the plaintiff.
7. Heard the learned counsel for the revision petitioner and the learned counsel for contesting respondents.
8. It is contended by the learned counsel for the petitioner that the Order passed by the learned trial Court is illegal, contrary to law and facts, weight of evidence and probabilities of the case; that the trial Court grossly erred in dismissing the application filed by the petitioner for appointment of the Commissioner and accordingly, prayed to set aside the Order passed by the learned Principal Senior Civil Judge, Warangal dated 3.6.2021 by allowing the Civil Revision Petition.
9. Order 26, Rule 9 of the Code of Civil Procedure, 1908 mandates Commission should make local investigation.
10. For the convenience sake, Order 26, Rule 9 of the Code of Civil Procedure, 1908 is extracted hereunder: 5
"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."
11. It is settled proposition of law that an Advocate- Commissioner cannot be appointed to collect the evidence and the parties have to establish their case by oral and documentary evidence.
12. In the present case, as rightly pointed out by the learned counsel for the respondent Nos.4 to 6, the revision petitioner/plaintiff has filed the suit for declaration of title over the suit schedule property, recovery of possession thereon and for injunction and other consequential reliefs. 6
13. A perusal of the plaint, it transpires that the petitioner/plaintiff has specifically mentioned the suit schedule property with definite boundaries. But in the reliefs prayed in the application under Order 26, Rule 9, the petitioner/plaintiff seeks for appointment of an Advocate-Commissioner to measure the entire land covered under Sy.No.497/A and to draw the sketch map together with measurements of the entire land in the survey number and to show the exact place where the suit schedule property is located, which shows that the plaintiff/petitioner is not sure about the entire extent of land under Survey No.497 or the exact extent of the suit schedule property and she seeks to collect the evidence through the Advocate-Commissioner report.
14. A perusal of the record, it also transpires 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. Under such circumstances, the trial Court has rightly rejected the application, because issuing the Commissioner report 7 before determination of the title tantamounts to collect the evidence in the facts and circumstances of the case. I do not find any manifest error or material irregularity in the Order passed by the learned trial Court. The Civil Revision Petition is devoid of merits and liable to be dismissed.
15. Accordingly, the Civil Revision Petition is dismissed at the admission stage, without costs.
Consequently, other miscellaneous petitions, if any pending, shall stand closed.
_______________________ JUSTICE G. SRI DEVI 22.07.2022 pgp