Telangana High Court
Sri Krishna Kumar V Shah vs Sri.T.Shanker Singh on 16 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITON No.2567 of 2022
ORDER:
This Civil Revision Petition is filed aggrieved by order dated 21.09.2022 passed by XI Additional Chief Judge, City Civil Court, Hyderabad in I.A.No.173 of 2020 in O.S.No.109 of 2018.
2. The aforesaid application was filed under Order XXVI Rule 9 of CPC seeking to appoint an Advocate-Commissioner to note down the physical features of the suit schedule property. By the impugned order, the trial Court allowed the said application and appointed one Smt T.P.Shailaja Reddy, Advocate, as Advocate- Commissioner.
3. Heard Ms Pratusha Boppana, learned counsel for the petitioners, and Sri Damodar Reddy, learned senior counsel representing Sri C.Ruthwik Reddy, learned counsel on record for the respondents. Perused the entire material available on record.
4. The main contentions raised by the learned counsel for the petitioners is that when a party contends that he/she is in possession of property, the burden is on the said party to prove their possession, but, the trial Court failed to appreciate the said well-settled principle and appointed an Advocate-Commissioner 2 LNA, J CRP.No.2567 of 2022 for noting down the physical features of the suit schedule property as the same amounts to collection and gathering of evidence. Hence, he prayed to set aside the impugned order.
5. Learned counsel for the petitioners relied upon the judgment of this Court in B.Janardhan Reddy Vs. Shantha Bai 1, the judgment of the High Court of Andhra Pradesh at Amaravathi in Selvaraju Dhanasekhar Vs. Viswanadha Venkata Yegneswara Sastry and others 2 and the judgments of the erstwhile High Court of Andhra Pradesh in A.Gopal Reddy Vs. R.Subramanyam Reddy and another 3, Yenugonda Bal Reddy Vs. Manemma and others 4 and the judgments of the High Court of Madras in Selvamariammal Vs. Kanagavel 5, Chandrasekaran and others Vs. V.Doss Naidu 6 and K.M.A.Wahab and others Vs. Eswaran and another 7 and the judgment of the combined High Court for the States of Telangana and Andhra Pradesh in Bandi Samuel and others Vs. Medida Nageswara Rao 8.
1 2020 SCC Online TS 1605 2 MANU/AP/0068/2019 3 2013 SCC Online AP 726 4 2010 SCC Online AP 842 5 2018 SCC Online Mad 7587 6 MANU/TN/0762/2005 7 2008(3) CTC 597 8 MANU/AP/0896/2016 3 LNA, J CRP.No.2567 of 2022
6. Per contra, learned counsel for the respondents contended that no prejudice is caused to the petitioners by appointing Advocate-Commissioner and it is only for noting down the physical features of the suit schedule property and therefore, the present Revision is devoid of merits and is liable to be dismissed.
7. Learned counsel for the respondents relied upon the judgment of this Court in Nalla Wilson and another Vs. Beldi Rani and another 9, judgment of combined High Court for the States of Telangana and Andhra Pradesh in K.Dayanand and another Vs. P.Sampath Kumar 10 and the judgment of High Court of Chhattisgarh in Phoolchand Asra Vs. Nagar Palika Nigam Raipur, Zone Commissioner 11.
8. This Court gave its earnest consideration to the rival submissions made by learned counsel for both the parties. Perused the entire material available on record and citations relied upon by the learned counsel appearing for both the parties.
9. Absolutely, there is no quarrel with regard to the proposition laid down by various High Courts in the judgments cited by the learned counsel for the revision petitioners that Advocate- 9 2022 SCC Online TS 3362 10 2015(2) ALD 319 11 2022 LawSuit(Chh) 1016 4 LNA, J CRP.No.2567 of 2022 Commissioner cannot be appointed for collection of evidence and also for making enquiry about the factum of possession of the property in dispute, and it is for the party to prove its possession by adducing oral and documentary evidence.
10. The present suit is filed for specific performance of agreement of sale and permanent injunction and there is a serious dispute with regard to the nature of the suit schedule property. The trial Court appointed the Advocate-Commissioner to note down the physical features of the suit schedule property and to file her report. The report of the Advocate-Commissioner, in fact, clears the ambiguity as regards the nature of the suit schedule property and the same does not amount to collection of evidence.
11. The burden of proof of possession is on the party who pleads the same. The report of the Advocate-Commissioner is not to ascertain as to who among the parties to the suit is in possession of the suit schedule property. If the Advocate-Commissioner makes a local inspection and notes down the physical features of the suit schedule property and file his/her report, the same aids the trial Court for better appreciation of the evidence that may be let in by the parties during the course of trial.
5
LNA, J CRP.No.2567 of 2022
12. Initially, the view of various High Courts was that an Advocate-Commissioner can be appointed only after adducing the evidence and for clarification of any ambiguity or when there is a necessity to answer a particular issue. However, of late, the Hon'ble Apex Court and various High Courts have taken a view that Advocate-Commissioner can be appointed even in a suit filed for injunction and it is better to appoint an Advocate- Commissioner even before adducing evidence so that the parties can lead evidence accordingly.
13. In K.Dayanand's case (cited supra), the combined High Court of Andhra Pradesh at para 24 of the judgment referred to the judgment of the Hon'ble Apex Court in Haryana Waqf Board and others v. Shanti Sarup and others 12, wherein it was held that the Commissioner can be appointed in injunction suits also. Also, reference was made to various judgments of this Court, wherein it was held that for the related purpose of clarifying the physical features of the suit schedule property, there can be appointment of Commissioner even in a suit for perpetual injunction. 12
2008 AIR SCW 6500 6 LNA, J CRP.No.2567 of 2022
14. In ECE Industries Limited (I) Vs. S.P. Real Estate Developers (P) Ltd 13, the Hon'ble Apex Court appointed Advocate-Commissioner to verify the actual position of the subject property by observing at para 9 as under:-
After hearing the learned counsel for the parties and after going through the Commissioner's report, we are of the prima facie view that before deciding this special leave petition finally on merits, it would be proper in order to do complete justice to find out the actual position of the suit property i.e:
(i) Whether constructions have been made on the different blocks of the suit property and how many blocks are still remaining vacant?
(ii) If constructions have been made, what is the nature and extent of such constructions?
(iii) Whether such constructions can be said to be substantial constructions or not.
(iv) Whether constructions have been completed in some blocks of the suit property and the flats constructed in such blocks are ready for use and occupation.
(v) Also to see the local features.
To find out the aforesaid, we appoint Shri Ram Krishna Prasad, a learned advocate of this Court, who will visit the suit property in course of this week by giving prior notice to both the sides and submit a report on the abovementioned items by next Monday i.e., on 27-7-2009." 13 (2009) 12 SCC 773 7 LNA, J CRP.No.2567 of 2022
15. The erstwhile High Court of Andhra Pradesh in Shaik Zareena Kasam Vs. Patan Sada Khan and others 14 at para 10 held as under:-
"Whenever there is a dispute regarding boundaries or physical features of the property or any allegation of encroachment as narrated by one party and disputed by another party, the facts have to be physically verified, because, the recitals of the documents may not reveal the true facts and measuring of land on the spot by a Surveyor may become necessary."
16. Further, a Division Bench of the erstwhile High Court of Andhra Pradesh in C.Veeranna Vs. Venkatachalam 15, held as hereunder:-
"The question as to when a Commissioner could be appointed should be within the wide discretion of the trial Court, but it cannot be said that no Commissioner could be appointed before the issues are framed or the evidence is led....."
17. Thus, in the light of the aforesaid judgments, the law is well settled that there is no specific bar for appointment of Advocate-Commissioner before commencement of trial or framing of issues.
14
2011 SCC OnLine AP 218 15 AIR 1959 AP 170 8 LNA, J CRP.No.2567 of 2022
18. In the instant case, the suit is filed for specific performance of agreement of sale dated 24.03.2006 and also for permanent injunction. Thus, the suit was filed after a lapse of about 12 years from the date of execution of agreement of sale in respect of agricultural land admeasuring Acs.15.39 guntas situated in Ramsinghpura, Gudimalkapur Village, Asifnagar Mandal, Hyderabad.
19. On the other hand, defendant Nos.6 to 8 have taken specific stand that the suit schedule land is not an agricultural land and it has been developed over a period of time and at present, it consists of marriage halls, business establishments, etc., but the said fact was suppressed by the plaintiff and obtained ex parte injunction in its favour.
20. If there is serious dispute with regard to the nature of the subject land, it is appropriate to appoint an Advocate- Commissioner to note down the physical features of the subject land, which will aid the trial Court for proper adjudication of the matter.
21. In the impugned order, the trial Court has recorded valid reasons for appointment of Advocate-Commissioner, which is in 9 LNA, J CRP.No.2567 of 2022 accordance with the ratio laid down by various High Courts and Hon'ble Supreme Court time and again that appointment of Advocate-Commissioner for noting down the physical features of the properties does not amount to gathering evidence on behalf of either of the parties.
22. Therefore, in the light of the above legal position and in the given facts, circumstances of the case, this Court is of the considered view that the impugned order passed by the trial Court does suffer from any fundamental infirmity which warrants interference by this Court.
23. Accordingly, this Civil Revision Petition is dismissed. There shall be no order as to costs.
24. Pending miscellaneous applications, if any, shall stand closed.
__________________________________ JUSTICE LAXMI NARAYANA ALISHETTY Date:16.04.2024 dr