The single-judge bench of the Andhra Pradesh High Court held that in each case, the need to appoint a commissioner is to be independently examined. Even if there are any private surveys conducted, since it is always subject to objection by the other side, it is safe to appoint a commissioner, if at all measurement of any property is required.
Brief facts
The factual matrix of the case is that the Plaintiff/Respondent filed the suit of permanent injunction in order to restrain the defendants, their men, and agents from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property in any manner. The Plaintiff irrigated the scheduled property with the help of the bore well of the neighboring land and raised a mango garden there. Thereafter, the Plaintiff was classified as a small farmer by the revenue authorities, and incorporated the name of the plaintiff in all revenue records, and issued pattadar passbook in her favour. The defendant/Petitioner alleged that they had been brought into existence by misrepresentation and fraud. Then, the defendant filed the petition to appoint an advocate commissioner to visit the scheduled property along with the Mandal Surveyor and to measure the entire survey number. However, the trial court dismissed the Petition while holding that the plaintiff raised a mango garden in the scheduled property about 30 years back and enjoyed the same. Aggrieved by this, the revision petition is filed by the defendants.
Contentions of the Petitioner
The Petitioner submitted that even in the case of perpetual injunction, a commissioner can be appointed in order to note down the physical features and to localize the property, to take photographs, not only under Order XXVI Rule 9 CPC but also under Order XXXIX Rule 7 CPC.
The Petitioner relied upon the judgments titled Podatur Allaiah Vs. P.Balaiah1 and Jayalakshmi Constructions, Hyderabad and another Vs. Nawab Behboob Ali Khan and others.
Contentions of the Respondent
The Respondent submitted that as the survey is conducted, so there is no need to again get the land surveyed. The Respondent relied upon the judgment titled Smt. Dasari Govardhanamma Vs. Smt. Patnam Ramulamma.
Observations of the court
The Hon’ble Court observed that the necessity of appointing a commissioner must be objectively assessed in every case. If a measurement of any property is needed, it is safe to appoint a commissioner even if private surveys are carried out since it is always subject to opposition by the opposing party.
The court furthermore observed that the observation of the trial court that the petitioners/ defendants admitted that the plaintiff raised the mango garden in the plaint scheduled property about 30 years back and enjoyed it with absolute right. However, it is incorrect from the written statement filed.
The Court noted that the appointment of a commissioner would enable a Court to understand the factual reality of the case on the ground rather than on paper in the form of pleadings and recorded oral evidence.
Based on these considerations, the court was of the view that the trial Court had not properly appreciated the necessity of appointing a commissioner.
The decision of the court
With the above direction, the court allowed the civil revision Petition,
Case title: Gadi Balarami Reddy and others Vs Yenugula Parvathamma
Coram; Hon’ble Mr. Justice B.S. Bhanumathi
Case No.: CIVIL REVISION PETITION NO: 2388/2023
Advocate for the Petitioner: NAGARAJU NAGURU
Advocate for the Respondent: SAIDULU S K
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