THE HON'BLE Dr. JUSTICE G. RADHA RANI
CIVIL REVISION PETITION No.1731 OF 2022
ORDER:
This civil revision petition is filed by the petitioner-respondent- plaintiff aggrieved by the order dated 26.07.2022 in I.A No.1 of 2022 in O.S No.144 of 2017 passed by the Principal Junior Civil Judge cum Judicial Magistrate of First Class at Kothagudem.
2. Heard learned counsel for the petitioner and the learned counsel for the respondents.
3. The learned counsel for the petitioner submitted that the petitioner filed a suit for perpetual injunction claiming that he was the owner and possessor of the suit schedule property, which was a vacant house site to an extent of 266.66 Sq. yds., in plot No.18 in Sy.No.805, situated at Paloncha Revenue Village, Paloncha Town and Municipality, Khammam District. The respondents-defendants filed written statement contending that no survey number 805, shown by the plaintiff, was available in the revenue records of Paloncha, as per the information obtained by them under Right to Information Act vide RC No.RTI/A612014, dated 22.08.2014. The trial was commenced in Dr.GRR,J 2 CRP No.1731 OF 2022 the above suit and the petitioner-plaintiff adduced evidence and the matter was posted for defendants' evidence. The affidavit of DW.1 was also filed and Exs.B1 to B3 were marked. When the matter was coming for defendants' further evidence, at that stage, the respondents-defendants filed I.A No.1 of 2022 seeking appointment of an Advocate Commissioner to locate the schedule property with the help of Mandal Surveyor. The said petition was allowed by the trial court vide order dated 26.07.2022.
3.1 The Court below ought to have seen that allowing I.A No.1 of 2022 in O.S No.144 of 2017 was only for collection of evidence. The respondents-defendants were not having any title or right or possession or interest either in Sy.No.802 or 805 as the original owner had sold the entire land in Sy.No.802 to an extent of Ac.1.26 gts., of Paloncha Revenue Village long back in the year 1965 and the names of subsequent purchasers had been entered in revenue records, pahanis and pattas. So, the question of appointment of an advocate commissioner for demarcating the lands would not arise. The defendants had not filed any piece of document in support of their having land in Sy.No.805 except making allegations. The court below Dr.GRR,J 3 CRP No.1731 OF 2022 erred in coming to a conclusion for appointment of advocate commissioner for demarcating the land in Sy.No.802 and Sy.No.805. No documentary proof was submitted by the respondents-defendants to prove the land in Sy.No.802 and hence, there was no locus standi for the respondents-defendants to seek appointment of advocate commissioner for demarcation of land with the help of Mandal Surveyor and prayed to set aside the order dated 26.07.2022 in I.A No.1 of 2022 in O.S No.144 of 2017 passed by the Principal Junior Civil Judge cum Judicial Magistrate of First Class, Kothagudem. He relied upon the judgments of this Court in A. Gopal Reddy v. R. Subramanyam Reddy and another1, Dammalapati Satyanarayana and others v. Datla Venkata Ramabhadra Raju @ D.V.R. Raju and another2, and Arvind Kumar Agarwal v. Legend Estates (P) Ltd., Ranga Reddy District, Hyderabad3.
4. Learned counsel for the respondents, on the other hand, submitted that the respondents - defendants had taken a specific plea that no Survey No.805 was available in Paloncha Revenue Records. It was necessary to appoint an advocate commissioner to locate the 1 2013 (4) ALD 347 2 2006 (4) ALD 675 3 2015 (2) ALD 206 Dr.GRR,J 4 CRP No.1731 OF 2022 petition schedule property with the help of Mandal Surveyor. The trial court rightly allowed the petition for effective adjudication of the matter in controversy and relied upon the judgments of this court in Smt. A. Laxmamma and another v. Smt. A. Venkatamma and another4, M.Yadaiah and another v. M. Chilkamma and others5 and Adarsh Constructions, Hyderabad and another v. Qamaarunnissa Begum and another6.
5. Now, the point for consideration is:
Whether the order of the trial court in allowing the petition for appointment of Advocate Commissioner is proper or not?
6. POINT:
Admittedly, the suit is filed for the relief of perpetual injunction. The only question that arises in the suit is whether the plaintiff is in possession and enjoyment of the schedule property. The burden rests upon the plaintiff to prove his possession. The parties cannot be permitted to gather evidence to prove their possession. They have to satisfy the court through oral and documentary evidence. As observed by this Court in A. Gopal Reddy v. R. Subramanyam 4 2016 (6) 795 (DB) 5 2022 (2) ALT 80 (TS) 6 2022 (3) ALT 662 (TS) Dr.GRR,J 5 CRP No.1731 OF 2022 Reddy and another (1 supra), appointment of commissioner at the instance of the defendant in a suit for perpetual injunction is a rare phenomenon. This Court observed that:
"The occasion to appoint an advocate-commissioner would arise, if only the trial of the suit is in progress and a typical question, which needs the examination by a commissioner arises. The appointment of a commissioner cannot be made at the threshold. Such an effort would be treated as a measure to gather evidence.
7. This court in Dammalapati Satyanarayana and others v.
Datla Venkata Ramabhadra Raju @ D.V.R. Raju and another (2 supra) observed that:
"6. The result of allowing the I.A. is that the Advocate Commissioner shall undertake localization of the suit schedule property with the help of a competent surveyor, basing on the title deeds of both the parties. It must be noted that the so-called title deeds must be accepted by the Court in evidence, before they constitute the basis for identification of the property. The admissibility, relevance etc., of the sale deeds can be undertaken only at the stage of recording evidence. The demarcation of the land with reference to location, survey numbers etc., must be with reference to the title deeds, which are admitted by the Court in evidence. If the report is submitted, even before the evidence is adduced, a stage may come, where the whole trial will revolve around such report."
Dr.GRR,J 6 CRP No.1731 OF 2022
8. Further in Arvind Kumar Agarwal v. Legend Estates (P) Ltd., Ranga Reddy District, Hyderabad (3 supra), this Court observed that:
"A perusal of the plaint shows that the petitioner has given specific boundaries to his property. Therefore, the initial burden lies on him to prove the identity of his property by adducing his own evidence. It is only after both the parties adducing their respective evidence, if any ambiguity prevails with reference to the identity of the property, that the Court on its own or on the application of either party, may appoint an Advocate-Commissioner. In my opinion, in a case of this nature, an application for appointment of an Advocate-Commissioner at the threshold itself cannot be entertained as the same will amount to gathering evidence."
9. Thus, in all the above cases, this Court observed that if any ambiguity prevails with reference to the identity of the property, only after both the parties adduced their respective evidence, the application for appointment of advocate commissioner could be allowed, but not at the threshold as the same would amount to gathering of evidence.
10. The contention of the learned counsel for the respondents was that it was only for localization of the property whether the suit schedule property was located in Sy.No.802 or 805, the advocate commissioner was appointed but, not to gather evidence. The Dr.GRR,J 7 CRP No.1731 OF 2022 judgment relied by the learned counsel for the respondents in A. Laxmamma and another v. Smt. A. Venkatamma and another (4 supra) would disclose that:
"5...There is no hard and fast rule or a settled position of law that an advocate commissioner cannot at all be appointed for any purpose in a suit for perpetual injunction. And, it cannot be laid down as a rule of thumb that in no suit for perpetual injunction, an advocate Commissioner can be appointed; however, the law is well settled that a Commissioner cannot be appointed to find out as to who amongst the parties is in possession of the suit property as it is the function of the Court to decide the issue as to who amongst the parties is in possession of the suit property and the said judicial function cannot be delegated to an advocate commissioner. Under law, in any suit in which the Court deems local investigation is requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to an advocate or any competent person and direct to make such investigation and to report to the Court.
6..... Orders in the nature of appointment of an advocate Commissioner to note down the physical features and boundaries of the disputed properties are incidental and complimentary in nature and assist the Court in arriving at a just decision in the lis unlike supplementary orders. .... Therefore, the appointment of a Commissioner, in the facts and circumstances of the instant case, would be helpful to the Court below in conclusively and effectively adjudicating the lis.
11. The other two cases relied by the learned counsel for the respondents also would disclose that there was no absolute bar for appointment of Advocate Commissioner in a suit for injunction Dr.GRR,J 8 CRP No.1731 OF 2022 simplicitor. The trial court allowed the petition on the ground that as both the parties were disputing about the existence of suit schedule property in the said survey number, if the advocate commissioner was appointed, his report would be useful for better appreciation of evidence put-forth by the competing parties and that it would not amount to collection of evidence.
12. But, however, considering the contention of the learned counsel for the petitioners that the defendants had not adduced any evidence nor filed any documents in proof of their title or right or possession till date and were relying only on the RTI information letters issued by the Tahsildar, Paloncha stating that Sy.No.805 was not found in the revenue records and if the Advocate Commissioner was appointed at this stage, the entire trial would revolve around his report only. Therefore, this Court finds merit in the contention of the learned counsel for the petitioner.
13. As such, it is considered fit to allow the revision case setting aside the order of the trial court in I.A. No.1 of 2022 in O.S. No.144 of 2017 appointing advocate commissioner at this stage. Only after defendants adduced their evidence, if the court still considers Dr.GRR,J 9 CRP No.1731 OF 2022 necessary to appoint an advocate commissioner, then the court below can appoint the advocate commissioner as the same would not amount to gathering of evidence.
14. In the result, the civil revision petition is allowed setting aside the order dated 26.07.2022 passed in I.A. No.1 of 2022 in O.S. No.144 of 2017 by the Principal Junior Civil Judge cum Judicial Magistrate of First Class, Kothagudem, appointing the Advocate Commissioner. However, the trial court can appoint the Advocate Commissioner only after the defendants adduced their evidence, if it considers necessary, as the same would not amount to gathering of evidence.
Pending miscellaneous petitions, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J September 22, 2022 KTL