Andhra Pradesh High Court - Amravati

Dandu Venkata Satya ... vs Bomidipati Raja Kamala on 5 December, 2022

Bench: Subba Reddy Satti

        HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

           CIVIL REVISION PETITION No.2269 of 2022

   Between:

   Dandu Venkata Satya Suryanarayana Raju,
   S/o late Gopala Raju, aged about 70 years,
   R/o    D.No.67-11-2/15D,    Road    No.98,
   L.B.Nagar, Kakinada.

                                                    ... Petitioner.
               Versus

   Bomidipati Raja Kamala, W/o Bomidipati Sri
   Vallabha Sastry, aged 67 years, R/o Flat No.7,
   III Floor, B.R.Complex, Krishna Nagar,
   Maharanipeta, Visakhapatnam and another.

                                                 ... Respondents.


Counsel for the petitioner             : Sri A.S.C.Bose
Counsel for respondents                : ---

                              ORDER

Plaintiff in the suit filed the above revision against the

order dated 13.06.2022 in I.A.No.32 of 2022 in O.S.No.415 of

2019 on the file of V Additional Junior Civil Judge, Kakinada.

2. Plaintiff filed the suit O.S.No.415 of 2019 seeking

perpetual injunction.

3. In the plaint, it was contended interalia that schedule

property was unclaimed and locked property situated

contiguous to the south of Plot No.14 in L.P.No.21 of 1991;

that originally one Saanji Venkata Subba Rao along with

others purchased land in an extent of Ac.1.50 cents by way of

registered sale deed dated 22.04.1972 and later divided the

same into plots; that plot No.16 fell to the share of S.V.Subba

Rao; that schedule property is unclaimed and locked property

situated contiguous to the south of plot No.16 and is in

possession of S.V.Subbarao; that he died intestate on

16.02.1990 and his legal heirs succeeded to plot No.16 and

contiguous plot; that unapproved layout was approved by the

Director of Town and Country Planning vide L.P.No.21 of

1991 dated 26.07.1993; that plot No.16 was changed to plot

No.14; that legal heirs of S.V.Subbarao i.e. Saanji Venkata

Naga Vara Prasad and other sold the plot to the plaintiff

under a registered sale deed dated 25.02.2002 and handed

over item No.1 along with item No.2 of plaint schedule

property; that item No.1 is plot No.14 and item No.2 is

unclaimed and locked property; that in the years 2011,

plaintiff got constructed RCC building in the schedule

property apart from shed and has been residing therein; that

in the year 2014 due to cyclone, two grown up trees collapsed

and damaged the roof and hence, the plaintiff replaced the

roof with GI sheets; that local authorities laid road on the

southern side of suit schedule property and thereby

unclaimed barren land got access; that on 22.04.2019,

defendants came with JCB and started cleaning, earth filling

and leveling the entire barren land in between suit schedule

property and newly laid road upto the compound wall on

southern side of suit schedule property and also damaged the

compound wall, so as to trespass into item No.2 of schedule

property; that plaintiff along with neighbours resisted their

illegal acts and eventually, filed the suit seeking injunction.

4. Defendants filed written statement and contended

interalia that sale deed of plaintiff does not indicate item No.2

of schedule property; that plot No.14 in L.P.No.21 of 1991 is

admeasuring 263 square yards; that on 12.08.1975 1st

defendant purchased an extent of 1210 square yards of site

in S.No.145, out of 2420 square yards; that northern side

boundary owner is shown as Yarramilli Narasimha Rao and

others; that Y.Narasimha Rao and other laid out the property

into house plots; that as per the sale deed of 1st defendant,

towards north of item No.2 of plaint schedule property, the

property of Y.Narasimha Rao is situated; that plaintiff with

ulterior motive to grab item No.2 of plaint schedule property

claimed the same as unclaimed and locked property, though

the same is in exclusive possession of 1st defendant; that 2nd

defendant, who is a doctor, after retirement settled at

Visakhapatnam and 1st defendant being wife of 2nd defendant

also residing in Visakhapatnam; taking advantage of

defendants 1 and 2 as absentee landlords, plaintiff tried to

interfere with property and in fact, partly encroached into

item No.2 of plaint schedule property and eventually, prayed

to dismiss the suit.

5. Pending the suit, defendants filed I.A.No.32 of 2022

under Order XXVI Rule 9 r/w Section 151 of CPC to appoint

an advocate commissioner to localize item No.1 of plaint

schedule property with reference to title deeds of both parties

with the assistance of Kakinada Urban Mandal Surveyor.

6. In the affidavit filed in support of the petition, it was

contended interalia that the suit is coming up for cross

examination of P.W.1 and Exs.A-1 to A-6 were marked; that

in view of specific stand in written statement that plaintiff

with ulterior motives to grab item No.2 of plaint schedule

property, which is covered by sale deed of 1st defendant dated

12.08.1975, as unclaimed and locked property, though the

same is in exclusive possession of 1st defendant and plaintiff

partly encroached item No.2 of plaint schedule property,

localization of item No.1 of plaint schedule property with

reference to title deeds of both parties is necessary; that

defendants applied for survey of property and adjoining

properties with reference to title deeds by Kakinada Urban

Surveyor, a notice was served on the plaintiff, but he did not

cooperate for the survey on the ground that suit is pending

and hence, survey of property could not be proceeded further.

7. Respondent/plaintiff filed counter opposing the

application.

8. By order dated 13.06.2022, the Court below allowed the

application appointing the advocate commissioner.

Challenging by the same, the present revision is filed.

9. Sri A.S.C.Bose, learned counsel for the petitioner would

submit that suit is filed seeking perpetual injunction, in

which the defendants filed petition to appoint an advocate

commissioner to localize item No.1 of schedule property to

gather evidence and the same is impermissible. He would

submit that item No.1 of schedule property is admeasuring

263 square yards and RCC building was constructed and

item No.2 is admeasuring 133 square yards and ACC sheet

shed is there and thus, there is no need to localize the

schedule property. He also would submit that in a suit for

injunction, plaintiff has to prove his possession over the

property and normally Courts will not appoint advocate

commissioner to gather evidence.

10. Now the point for consideration is:

Whether the Court below by exceeding its jurisdiction appointed the advocate commissioner?

11. Suit O.S.No.415 of 2019 is filed seeking perpetual

injunction. Item No.1 of schedule property, according to the

plaintiff was purchased under a registered sale deed dated

25.02.2002. Item No.2 of schedule property, according to the

plaintiff, is situated towards south of item No.1 as unclaimed

and locked property and the same has been in possession

and enjoyment of the predecessors of vendors of plaintiff; that

after plaintiff purchased the property, he constructed RCC

building and shed therein. 1st Defendant in the written

statement contended that an extent of 1210 square yards in

S.No.145, out of 2420 square yards was purchased by 1st

defendant under a registered sale deed dated 12.08.1975 and

northern boundary in the said sale deed is shown as site sold

to Yarramilli Narasimha Rao and others.

12. Going by the plaint averments, lay out was laid by

Saanji Venkata Subba Rao and others in the property

purchased by them. Though the plaint does not indicate the

name of Yarramilli Narasimha Rao, in fact, S.V.Subbarao,

and Yarramilli Narasimha Rao and others laid the lay out. In

the layout plot No.16 was allowed to S.V.Subbarao and later

the same was renumbered as plot No.14. Plaintiff also

contended that item No.2 of schedule property is unclaimed

and locked property. 1st Defendant asserted that the alleged

unclaimed and locked property is part of property purchased

by 1st defendant under a registered sale deed. When there is

dispute regarding encroachment of property, in the interests

of both parties, localization of property is necessary.

13. In Velaga Narayana and Ors. Vs. Bommakanti

Srinivas and Ors.1, the composite High Court of Andhra

Pradesh held thus:

"13. Under Rule of Order 26 in any suit in which the Court deems a local investigation is necessary or proper for the purpose of elucidating any matter in dispute, it can issue a commission. Though issuing commission is discretionary, the Court has to exercise discretion in an appropriate and judicious manner. The purpose and object of local investigation under Rule 9 is to have the evidence from the spot itself to have a correct and proper understanding of the dispute between the parties. The local investigation report submitted by the commissioner enables the Court to make a correct assessment of evidence on record. When the Court is of the opinion that the material on record requires elucidation, it would be just and reasonable to issue a commission for the said purpose. A commission at the instance of one of the parties to find out as to who is in possession of the property cannot be issued as it enables the party seeking appointment of commissioner to collect or gather evidence. But, where there exists a dispute regarding suit property, the Court has to necessarily issue a commission with the assistance of a surveyor, otherwise, it would be highly difficult for the Court to completely and effectively resolve the dispute and issuing such commission would not amount to collection of evidence. Commission for the said purpose can be issued prior to or after the parties let in their evidence."

14. In Nambada Varaha Narasimhulu vs. Karanam

Dalamma2, the composite High Court of A.P. held thus:

2014 (4) ALT 152

"Having considered the rival submissions, this Court is of the view that it cannot be inferred that the appointment of Advocate Commissioner/Surveyor for specifically localizing the plaint schedule vacant site and identifying in which survey the disputed property is located cannot be done at the instance of the parties to the dispute. As a matter of fact, the only method by which the identification of the property can be made is by way of ordering conduct of survey particularly when the dispute between the parties is with regard to which survey number the disputed property is situated in."

15. In K. Dayanand vs. P. Sampath Kumar3, the

composite High Court of Andhra Pradesh referred to the

judgment in J.Satyasri Rambabu Vs. A. Anasuya and Anr.

(AIR 2005 AP 529), wherein this Court at paragraph No. 6

held thus:

"It is no doubt true that the Courts are normally reluctant to appoint a Commissioner for noting physical features of the suit schedule property, particularly in a suit for injunction since the same would amount to collecting evidence in favour of one of the parties. However, there is absolutely no reason to hold that it is a hard and fact rule. Having regard to the facts and circumstances of the case and particularly whenever the Court prima facie finds that there is an attempt on the part of one of the parties to alter the physical features of the suit property and it is necessary to take note of the same, it is always open to the Court to appoint a Commissioner for inspection of such property. It is relevant to note that Order XXXIX Rule 7 of the Code of Civil Procedure empowers the Court to make an order for detention, preservation or inspection of any property, which is the subject matter of the suit, if the Court feels that such action is necessary or expedient for the purpose of obtaining full information or evidence. In the

2014 (6) ALT 94

2015 (2) ALD 319

light of the above said provision, I am unable to agree with the contention of the learned Counsel for the petitioner that the Court below has committed an error in appointing an Advocate Commissioner. As already noted above the specific plea of the plaintiffs is that in spite of the order of temporary injunction the defendant has been taking steps to alter the nature of the suit schedule land. In the circumstances, the Court below having considered the entire material on record has rightly appointed an Advocate Commissioner. The said order cannot be said to be vitiate on account of any patent error of fact or law and therefore, does not warrant interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India."

16. A perusal of above referred expressions of this Court

would make it clear that though in a suit for injunction, when

there is dispute regarding identity and encroachment of

property, localization of property is necessary. In fact,

localization of property would resolve the dispute between the

parties amicably. Apart from that, defendants in the suit

tried to get the property surveyed by a surveyor, plaintiff

objected the same. In those facts and circumstances of the

case, appointment of an advocate commissioner to localize

item No.1 of schedule property with reference to sale deeds of

both parties and it does not amount to gathering of evidence.

Hence, this Court is of the considered opinion that there is no