Andhra Pradesh High Court - Amravati
Smt. Markonda Patnaik Vanaja ... vs Sri Anga Appala Raju, on 18 July, 2022
1
THE HON'BLE SRI JUSTICE BATTU DEVANAND
CIVIL REVISION PETITION NO.1311 of 2022
O R D E R:
Aggrieved by the Order dated 07.03.2022 in I.A.No.8 of 2018 in
O.S.No.127 of 2013 on the file of the Junior Civil Judge, Gajuwaka, the
present Civil Revision Petition is filed by the petitioners.
02. Heard Sri G. Venkata Subba Raju, learned Counsel for the
Petitioners and perused the material available on record.
03. Petitioners are the defendants and the Respondent is the plaintiff in
O.S.No.127 of 2013 on the file of the Junior Civil Judge, Gajuwaka.
Submissions of the learned counsel for the Petitioners:
04. Learned counsel for the petitioners submits that the respondent
filed O.S.No.127 of 2013 for permanent injunction against the petitioners.
When the suit is at the stage of the evidence of Dw.3, the respondent filed
I.A.No.08 of 2018 to appoint an Advocate Commissioner to note down the
physical features and measures the plaint schedule property with the
assistance of the Mandal Surveyor without completing the evidence of the
defendants. The trial Court, on erroneous consideration of the facts,
allowed the said I.A.
05. Learned counsel further submits that lawful possession of the suit
property by the respondent on the date of suit is only the relevant issue in
the suit for permanent injunction and therefore, appointment of an
Advocate Commissioner is not relevant. The trial Court failed to see that
the respondent without furnishing and producing the relevant documents
i.e., the land acquisition records, which constitute the basis for deciding
the dispute, and as proof of his right title and possession over the alleged
259 sq. yards, an effective adjudication of the suit cannot be reached out
and instead of fulfilling this requirement, the respondent cannot seek the
help of the Court by back door method to gather the evidence on his
behalf. The trial Court failed to appreciate and discuss the contentions
made by both the parties. He further submits that on perusal of the
documents projected and filed by the respondent, the respondent failed to
place any measurements of the schedule property. There is no whisper
regarding how much extent of land was owned by the respondent and
how much extent was acquired, and as such, without filing any cogent,
tenable evidence, more particularly at this stage, only seeking the relief
such as appointment of an Advocate Commissioner to note down the
physical features and measure the plaint schedule property is quite non-
est in the eye of law.
06. It is the duty of the plaintiff to prove that he is in peaceful
possession and enjoyment of the suit schedule property with specific
measurements by placing documentary evidence or at least oral evidence
as on the date of the filing of the suit. Therefore, he prayed to allow the
Civil Revision Petition.
FINDING OF THE COURT:
07. On careful examination of the material available on record, it
appears, when the main suit is at the stage of the evidence of the DW.7,
the Respondent filed I.A.No.08 of 2018 in O.S.No.127 of 2013 to appoint
an Advocate Commissioner to note down the physical features and
measures the plaint schedule property with the assistance of the Mandal
Surveyor. When there is any dispute regarding the boundaries or physical
features of the property or any allegations of the encroachment by one
party and disputed by the other, it is just and essential to appoint an
Advocate Commissioner as sought by the respondent to adjudicate the
matter very effectively. It is also helpful to the Court to come to a right
conclusion while deciding the matter on merits. The trial Court, while
relying on the judgments relied on the by the learned counsel for the
respondent, rightly held that the appointment of Advocate Commissioner
for the purpose stated above will be helpful to the Court to come to a
conclusion and decide the dispute between the parties, and as such,
appointment of Advocate Commissioner is necessary to adjudicate the
matter. Therefore, there is no any illegality or irregularity in the order
passed by the trial Court.
08. Considering the facts and circumstances of the case and the
material available on record, this Court is fully agreeing with the finding of
the learned Junior Civil Judge, Gajuwaka, and in our considered view, no
interference is warranted.
09. Accordingly, this Civil Revision Petition is dismissed.
10. There shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in this case
shall stand closed.
______________________
JUSTICE BATTU DEVANAND
Dt. 18.07.2022
eha
THE HON'BLE SRI JUSTICE BATTU DEVANAND
CIVIL REVISION PETITION NO.1311 of 2022
Dt. 18-07-2022
eha
