Andhra Pradesh High Court - Amravati
The vs Commissioner Is Absolutely ... on 9 February, 2022
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
C.R.P.Nos.1096 & 1116 of 2021
COMMON ORDER:
The plaintiff had filed O.S.No.55 of 2013 in the Court of the Senior
Civil Judge, Chirala, against the respondent herein for declaration that he
is the owner of the suit schedule property and for delivery of possession
of the suit schedule property. The respondent had filed a written
statement denying the case of the petitioner. Thereafter, trial was
conducted and evidence was adduced and the suit was posted for
arguments of both sides. At that stage, the petitioner had filed two
applications being I.A.No.284 of 2021 to reopen the suit on plaintiff's side
for appointment of an Advocate Commissioner and I.A.No.285 of 2021 to
appoint an Advocate Commissioner to measure Item No.1 of Ex.B.2 and
Item Nos.1 and 2 of Ex.A.1 on land, through the assistance of Taluk
Surveyor and also to note down the physical features of construction of
the wall.
2. These applications were contested by the respondent and
after hearing both sides, the trial Court dismissed both the applications on
17.09.2021. Aggrieved by the said order, the petitioner has approached
this Court by way of these two revision petitions.
3. As both the applications relate, essentially, to the same issue
these revision petitions are being disposed of by this common order.
4. Sri N.A. Ramachandra Murthy, learned counsel appearing for
the petitioner, would submit that the trial Court had dismissed both the
applications on the single ground of delay in filing the applications. He
would rely upon the judgment of the Hon'ble Supreme Court in Haryana
2 RRR,J
C.R.P.Nos.1096 & 1116 of 2021
Waqf Board vs. Shanti Sarup and Ors.,1 to contend that such
applications are permissible at any stage and cannot be shut out on the
ground of delay. He further submits that appointment of Advocate
Commissioner is absolutely necessary as the said Advocate Commissioner
would be able to verify the construction of wall by the defendant and
would also be note the physical features of the property in question to
demonstrate that the description of the property in the documents marked
as exhibits is not correct.
4. Sri Marri Venkata Ramana, learned counsel appearing for the
respondent would submit that the applications were not dismissed solely
on the ground of delay but also on the ground that the burden of proof in
proving his case would always lie on the petitioner and the same cannot
be discharged by appointment of an Advocate Commissioner.
5. A perusal of the affidavit filed in support of I.A.No.285 of
2021 would show that appointment of Advocate Commissioner was being
sought for the purpose of demonstrating that the description of property
in the documents marked in the trial, is incorrect. To my mind, this would
factually mean that the Advocate Commissioner is being used for
collecting evidence and the same is not permissible under law.
6. Further, the petitioner seeks appointment of Advocate
Commissioner to demonstrate that the defendant had illegally constructed
a wall in the property under dispute. It is not clear as to how an Advocate
Commissioner appointed for noting the physical features can give any
finding that the wall was constructed by the defendant and that it was an
illegal construction.
1
(2008) 8 SCC 671
3 RRR,J
C.R.P.Nos.1096 & 1116 of 2021
7. For the aforesaid reasons, I do not find any reason to
interfere with the orders of the trial Court in either of these revision
petitions.
8. Accordingly, these civil revision petitions are dismissed.
There shall be no order as to costs. As a sequel, pending miscellaneous
petitions, if any, shall stand closed.
_________________________
R. RAGHUNANDAN RAO, J.
9th February, 2022
Js.
4 RRR,J
C.R.P.Nos.1096 & 1116 of 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
C.R.P.Nos.1096 & 1116 of 2021
9th February, 2021
Js.
