THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
CIVIL REVISION PETITION No.1396 of 2022
ORDER:
The present Civil Revision Petition is filed challenging the dismissal order dated 09.05.2022 passed by the Principal Junior Civil Judge-cum-Judicial First Class Magistrate, Medak, in I.A. No.223 of 2022 in I.A. No.657 of 2021 in O.S. No.187 of 2021, whereby the learned Judge dismissed the application filed by the petitioner-plaintiff for appointment of an Advocate Commissioner.
Learned counsel for the petitioner has stated that the trial Court, contrary to the well established principles of law laid down by this Court as well as the Hon'ble Supreme Court, has dismissed the I.A. filed for appointment of an Advocate Commissioner. Learned counsel has further stated that the petitioner, who is the plaintiff in the suit, has filed the suit to declare him as the absolute owner of the suit schedule property i.e. land admeasuring Ac.0-31 guntas in survey No.1102 of Pillikotal @ Pillikotla, Medak Mandal and District; to direct the defendants to remove all the illegal structures construed in the land admeasuring Ac.0-08 guntas out of Ac.0-31 guntas in survey No.1102; to grant permanent injunction against the defendants or any persons claiming through them from interfering with the suit schedule property; and to pay costs of the suit. Learned counsel for the petitioner has stated that 2 AAR, J C.R.P. No.1396 of 2022 the respondents herein are arrayed as defendants in the said suit and a written statement has been filed by defendant Nos.1 and 2 in the suit mainly stating that their land admeasuring Ac.0-08 guntas is falling in survey No.1342 only and they are not claiming any land in survey No.1102. Therefore, to resolve the boundary dispute between the parties, the application for appointment of an Advocate Commissioner has been filed by the petitioner-plaintiff to demarcate the boundaries of survey Nos.1102 and 1342 and to find as to whether the defendants have encroached the land of the petitioner in survey No.1102 or not. But, the trial Court without application of mind, without properly appreciating the issue involved in the present litigation has dismissed the I.A. filed by the petitioner in a mechanical manner. Learned counsel has also drawn the attention of the Court to the findings given by the trial Court while dismissing the I.A. whi9ch on the face of it are totally wrong and contrary to the pleadings of the parties.
Per contra, the learned counsel for the respondents has stated that the respondents do not want to file any counter and argued the matter on merits. The learned counsel has contended that the trial Court has rightly dismissed the I.A. as the appointment of an Advocate Commissioner would amount to gathering of evidence and the same is impermissible in law laid, the various judicial pronouncements of the Hon'ble Supreme Court 3 AAR, J C.R.P. No.1396 of 2022 as well as this Hon'ble Court in a catena of cases holding that an Advocate Commissioner cannot be appointed for the purpose of noting the physical features of the suit schedule properties as it would amount to gathering of evidence. Learned counsel has stated that the petitioner herein as to first establish his case by leading evidence and after completion of the trial, the trial Court is still of the opinion that the issue between the parties to the suit cannot be resolved based on the evidence available on record, then only the question of appointing an Advocate Commissioner would arise. Learned counsel has further stated that the petitioner has already approached the Revenue and Survey departments seeking demarcation of his survey number. Therefore, the question of appointing an Advocate Commissioner for the very same purpose is unwarranted and prayed this Court to dismiss the present Civil Revision Petition with costs.
Perused the material on record.
A perusal of the impugned order shows that admittedly there is a boundary dispute with regard to the lands claimed by the petitioner as well as the respondents. The petitioner is claiming the land in survey No.1102 to an extent of Ac.0-31 guntas whereas respondents are claiming the land in survey No.1342 to an extent of Ac.0-08 guntas. This Court as well as the Hon'ble Supreme Court in a number cases have held that when there is a dispute 4 AAR, J C.R.P. No.1396 of 2022 with regard to the boundaries, the best method by which the issue can be resolved is by appointment of an Advocate Commissioner, who with the help of local Mandal Surveyor or the Assistant Director concerned, can demarcate the said survey numbers claimed by the parties and find out if the allegations of any encroachment by the other side are true or not. The finding of the trial Court that there is no dispute with regard to the location and identity of the property is absolutely incorrect. As per the pleadings of the parties, they are claiming land in two different and distinct survey numbers. Therefore, the question of there being no dispute with regard to the location and identity of the subject properties does not arise. The trial Court based on the village map has observed that the road leading from Medak to Chegunta is on the straight line and the same is intervening survey numbers 1342 and 1102 whereas the report of the Tahsildar vide Lr.B/1038/2022 dated 10.03.2022 shows that the total extent of the land in survey No.1342 is Ac.0-33 guntas and the existing Medak road is not tallying with the road, as per the village map, that survey No.1342 is on the west side of the road as per the village map whereas after formation of the existing road, the part of the land in survey No.1342 is on the eastern side of the present road and that there is a change in the alignment of the road. The trial Court further observed that the position of the land in survey No.1342 would 5 AAR, J C.R.P. No.1396 of 2022 change and cannot be expected to be the same as in the village map. The said observations are without any legal basis and factually incorrect.
Irrespective of the fact whether there is any change in the alignment of the road or not, the location and boundaries of any survey number will not change. The question as to whether the respondents have encroached any land in survey No.1102 or not can only be answered if the boundaries of survey No.1102 as well as 1342 are surveyed and demarcated on ground. Once the boundaries are fixed, the question as to whether the respondents have encroached into the land of the petitioner can be decided based on survey sketch prepared by the Advocate Commissioner.
The Hon'ble Supreme Court in Haryana Waqf Board and others vs. Shanti Sarup and others1, at paras 4 to 8, has held as under:
"Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 C.P.C.
The appellate Court found that the trial Court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorized possession in 1 (2008) 8 SCC 671 6 AAR, J C.R.P. No.1396 of 2022 respect of the suit land by them as per Para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial Court was wrongly rejected.
It is also not in dispute that even before the appellate Court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land. For the reasons aforesaid, we are of the view that the High Court ought to have considered this aspect of the matter and then to decide the second appeal on merits. Accordingly, we set aside the judgment and decree passed in the second appeal and the second appeal is restored to its original file. The High Court is requested to decide the second appeal in the light of the observations made hereinabove within six months from the date of supply of a copy of this order to it. The appeal is thus allowed. There will be no order as to costs."
In Pennamma Vally vs. Achutan Unni2, a Division Bench of Kerela High Court has held as under:
"It is of frequent occurrence, especially in cases where the disputed line of division runs between waste lands which have not been subject of definite possession, that no satisfactory evidence is obtainable. That circumstance 2 KERLT-1966-0-86 7 AAR, J C.R.P. No.1396 of 2022 cannot relieve the Court of the duty of settling a line, upon the evidence which is laid before it. The ordinary rule regarding the onus incumbent on the plaintiff has really no application to cases of that kind. The parties to the suit are in the position of counter-claimants; and it is the duty of the defendant, as much as of the plaintiff, to aid the Court in ascertaining the true boundary. Where any other rule recognized, the result might be that some boundaries would be incapable of judicial settlement."
In Laxman Sabanna Athani vs. Mahadev Babu Bastawade and another3, the Karnataka High Court (Circuit Bench at Dhrawad) reiterated the same principle that Commissioner can be appointed, when there is dispute regarding boundary, to demarcate the property with the help of Assistant Director of Land Record etc., and Commissioner report can be relied upon in the absence of any mala fide attached to the officer.
For the afore-stated reasons and in view of the ratio laid down in the above referred judgments, the impugned order dated 09.05.2022 passed by the Principal Junior Civil Judge-cum- Judicial First Class Magistrate, Medak, in I.A. No.223 of 2022 in I.A. No.657 of 2021 in O.S. No.187 of 2021, is hereby set aside and the trial Court is directed to appoint an Advocate Commissioner to demarcate the lands in survey Nos.1102 and 1342 for conducting survey and demarcate the lands of the parties with the help of the 3 RSA No.258/2004 (INJ) 8 AAR, J C.R.P. No.1396 of 2022 Mandal Surveyor to find out if any land of the petitioner has been encroached by the respondents or not.
Accordingly, the Civil Revision Petition is allowed. Miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date : 07.09.2022 sur