Namburi Bose Babu Died vs Yarra Samuel Raju
2022 Latest Caselaw 8587 AP

        HON'BLE SRI JUSTICE SUBBA REDDY SATTI

         CIVIL REVISION PETITION No.1418 of 2022

ORDER:

Defendants in the suit filed the above civil revision

petition under Article 227 of the Constitution of India against

the order, dated 02.07.2022 passed in I.A.No.342 of 2022 in

A.S.No.132 of 2019 on the file of learned VIII Additional District

Judge, West Godavari, Eluru.

2. Petition filed by defendants with a prayer to appoint

Advocate Commissioner to note down the physical features,

boundaries and existence of electrical service connection and

shed in the petition schedule property, was dismissed.

3. The parties in this civil revision petition shall be referred

to as they are arrayed in O.S.No.262 of 2015.

4. Respondent/plaintiff filed O.S.No.262 of 2015 on the file

of learned Principal Junior Civil Judge, Eluru against

defendants Nos.1 and 2 for permanent injunction restraining

them from interfering with plaintiff's peaceful possession and

enjoyment of suit schedule property.

5. The case of the plaintiff, in brief, is that plaintiff

purchased the suit schedule property under Ex.A1, registered

sale deed, dated 03.03.2015; that his vendor purchased the

property from defendant No.2 under two registered sale deeds

i.e. Exs.A2 and A3, dated 06.09.2003 and 29.07.2004; that

plaintiff's name was updated in revenue records; that plaintiff is

in possession and enjoyment of the suit schedule property; that

when the defendants tried to encroach upon the suit schedule

property, above suit was filed.

6. Defendant No.1 filed written statement and contended

inter alia that plaintiff is henchmen of Perumalla Janardhana

Rao, husband of the vendor of the plaintiff; that said Perumalla

Janardhana Rao, with his wife Durga Malleswari got filed suit in

O.S.No.245 of 2014 on the file of learned I Additional Junior

Civil Judge, Eluru, with false allegations against defendant No.1

and later withdrew the said suit; that after disposal of the suit,

Perumalla Janardhana Rao filed a complaint to grab the suit

schedule property and later registered property in the name of

the plaintiff; that defendant No.1 was assigned Ac.10-00 in

R.S.Nos.1078/1, 1078/3, 1079/4 in Suryapet in the year, 1993

vide patta bearing LD No.106/93; that he suffered with heart

attack in the year, 2003 and hence, he approached the husband

of the plaintiff's vendor for financial assistance; that taking

advantage of the same, Perumalla Janardhana Rao provided

financial assistance upon mortgage of part of the suit schedule

property and obtained signatures of defendant No.1 on some

non-judicial stamp papers; that Perumalla Janardhana Rao

requested defendant No.1 to mortgage some property and asked

defendant No.1 to come to Registrar Office to execute registered

mortgage deed and thus, defendant No.1 along with Perumalla

Janardhana Rao went to registrar office on 29.07.2004; that

defendant No.1 underwent by-pass surgery and he was

completely bed ridden for about two years and taking advantage

of the situation, Perumalla Janardhana Rao created documents

in favour of his wife and later alienated the property in favour of

the plaintiff and thus, prayed to dismiss the suit.

7. The suit was decreed on contest by judgment and decree,

dated 26.07.2019. Against the said judgment and decree,

defendants filed A.S.No.132 of 2019. Pending the appeal,

defendant No.1 died and his legal representatives were brought

on record as appellant Nos.3 and 4. In the appeal, appellants

filed I.A.No.148 of 2021 under Order XLI Rule 5 of CPC seeking

stay of judgment and decree of the trial Court and the same was

dismissed by the appellate Court. Against the said order, CRP

No.416 of 2022 was filed. While disposing of the said CRP, this

Court directed the appellate Court to dispose of the appeal suit

within six months. After receipt of orders on 23.04.2022, the

present application is filed by the defendants on 25.07.2022 to

appoint Advocate Commissioner to note down physical features,

the existing boundaries on land and electricity service

connection therein.

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

contended inter alia that patta was granted for entire extent of

Ac.10-00 cents i.e. Ac.1-60 cents in R.S.No.1078/1, Ac.3-50

cents in R.S.No.1078/3, Ac.4-90 cents in R.S.No.1079/4

totaling to Ac.10-00 cents; R.S.No.1078/3 and R.S.No.1079/4 is

single plot and no demarcation was made; that the suit

schedule property is situated in R.S.Nos.1078/3 and 1079/4

and there is no demarcation for the extent and the suit schedule

property is not correct and there is no electricity service

connection bearing No.1516111039000518 and there is

asbestos rake shed situated in an extent of Ac.0-02 cents on the

South West corner in R.S.No.1078/3; that the plaintiff was

never in possession and enjoyment of the suit schedule property

and thus, filed application for appointment of Advocate

Commissioner to note down the physical features of the suit

schedule property by noting down the boundaries existing on

the land and to note down electricity service connection.

9. Respondent/plaintiff filed counter opposing the

application and it was contended inter alia that service

connection situated in the suit schedule property is in the name

of the respondent/plaintiff; that defendant No.1 sold the

property to the vendor of the plaintiff under two registered sale

deeds and thereafter plaintiff purchased the property; that the

revenue authorities updated revenue records; that plaintiff

mortgaged the suit schedule property with Syndicate Bank by

depositing title deeds; that the petition filed is only to collect

evidence and also to protract the litigation and thus, prayed to

dismiss the application.

10. By order, dated 02.07.2022, lower Court dismissed the

application. Against said dismissal, the present revision is filed.

11. This Court ordered notice to the respondents and

permitted learned counsel for the petitioner to take out personal

notice on the respondents and file proof of service. Proof of

service was filed vide USR No.52843 of 2022. Inspite of service

of notice, there is no representation on behalf of the respondent.

12. Heard Sri Sita Ram Chaparla, learned counsel for the

petitioners.

13. Learned counsel for the petitioners would contend that

appointment of Advocate Commissioner is necessitated since

the plaintiff has shown wrong boundaries in the schedule and

the suit schedule property is not demarcated. He would further

contend that noting down the physical features will help the

Court in deciding the case and to resolve the dispute between

the parties. Thus, prayed to allow the revision.

14. The object of local inspection under Order XXVI Rule 9 of

CPC is to collect evidence at the instance of the party who relies

upon the same and which evidence cannot be taken in the

Court but could be taken only from its peculiar nature on the

spot. When the evidence will necessitate that part of the

evidence will elucidate a point, which may otherwise be left in

doubt or ambiguity on record. Advocate Commissioner, in effect,

is a projection of the Court appointed for a particular purpose.

The report of the Commissioner within the suit shall form part

of the record. The local investigation is the best way to find out

the possession when there is dispute regarding identity of the

property. Under the guise of local investigation, party who is

making application will not be allowed to collect the evidence.

The Court must keep these factors in mind while ordering or

rejecting application for appointment of Advocate Commissioner

basing on facts of each case.

15. In the case on hand, plaintiff is claiming title to the

property by virtue of Ex.A1 sale deed, dated 03.03.2015. The

vendor of the plaintiff purchased the suit schedule property

under two registered sale deeds i.e. Exs.A2 and A3, dated

06.09.2003 and 29.07.2004 from defendant No.1. It is pertinent

to mention here that defendant No.1, in his written statement

contended that he approached husband of vendor of the plaintiff

when he needed money for his medical purpose and at that

point of time, husband of the vendor of the plaintiff obtained

signatures and got the documents executed under the guise of

mortgage. Thus, the contention of defendant No.1 is that Exs.A2

and A3 are obtained by the husband of the vendor of the

plaintiff and they came into possession of the property under

the guise of those documents, when he was away from the

station.

16. In the facts of the case, as narrated supra, appointment of

Advocate Commissioner to note down physical features and

boundaries existing on the land, may not arise. The Court must

form an opinion that local inspection by Advocate Commissioner

is essential for effective disposal of the suit. In view of the

pleadings of the parties and the material available on record,

this Court finds no illegality in the order of the Court below in

declining to appoint advocate commissioner. Hence, this

revision is liable to be dismissed.

17. Accordingly, this Civil Revision Petition is dismissed at the

stage of admission. No costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

__________________________ SUBBA REDDY SATTI, J

Date : 09.11.2022

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HON'BLE SRI JUSTICE SUBBA REDDY SATTI

CIVIL REVISION PETITION No.1418 of 2022

Date : 09.11.2022

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