Andhra Pradesh High Court - Amravati

N. Sri Devi vs Ujinaiah on 5 May, 2023

   THE HON'BLE DR. JUSTICE K.MANMADHA RAO

     CIVIL REVISION PETITION No. 1767 OF 2019


ORDER:

This Civil Revision Petition is filed under Article 227 of

Constitution of India, aggrieved by the order in I.A.No.398

of 2019 in O.S.No.86 of 2013, dated 04.06.2019 passed by

the Principal Junior Civil Judge, Adoni.

2. The brief facts of the case are that the petitioner

herein is the plaintiff, the respondents herein are the

defendants in the suit. The petitioner herein filed suit in

O.S.No.86 of 2013 on the file of Principal Junior Civil Judge,

Adoni (for short "the Court below") for grant of permanent

injunction and to direct the defendant Nos. 2 and 3 not to

approve the plan but to safeguard the property. During the

course of trial, the petitioner filed I.A.398 of 2019 under

Order 26 Rule 9 of the CPC for appointment of Advocate

Commissioner to survey the suit schedule property with

reference to approved lay out in T.P.No.30/1969 and to

submit report. On hearing both sides, the trial Court

dismissed the said I.A. Challenging the said impugned

order, the present Revision Case came to be filed.

3. Heard Sri Sitaram Chaparla, learned counsel for

the petitioner and Sri B.Sarvotham Reddy, learned counsel

for the respondents.

4. The learned counsel for the petitioner submitted

that the trial Court failed to consider the present petition is

filed to appointment of commissioner to visit the schedule

property and to note down whether the 1st defendant

making constructions in the land, which is classified as

reserved site for public purpose and the trial Court also

failed to consider that the 2nd defendant itself stated in his

written statement that there is a site in an extent of

Ac.0.20 cents in Sy.No.87/B which is reserved site meant

for part and school and now the respondent Nos. 2 and 3

colluded with the 1st respondent and the respondent Nos.2

and 3 not interested in protecting the site from making

constructions by the 1st respondent and if the Court would

not appoint an advocate commissioner, so many facts,

which cannot be brought to the notice of the Court below

by way of oral evidence will be out of record and if those

facts are not on record by way of observations of the

Advocate commissioner, the trial Court cannot determine

the real questions involved in the suit and no prejudice will

caused to the respondents, by appointing an Advocate

Commissioner. In support of his contentions, he placed

reliance on the judgment in Gamidi Koteswara Rao Vs.

Gorle Rama Ratnam & 7 Ors.,1 wherein the High Court of

Andhra Pradesh held in para No.20 that:

"20. ...... When there is a dispute with regard to nature of the property, it is necessary to appoint an Advocate Commissioner to note down the physical features. Advocate Commissioner cannot be appointed for the purpose of verifying as to who is in possession of the property."

5. Per contra, the learned counsel for the

respondents/defendants reiterated their averments in the

counter-affidavits.

2023 (2) ALD 422 (AP)

6. Appointment of Commissioner etc., is

contemplated under Section 75 of Code of Civil Procedure.

75. Power of court to issue commissions: -

Subject to such conditions and limitations as may be

prescribed, the Court may issue a commission -

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.

Order XXVI Rule 9: Commissions to make local

investigation:-

In any suit in which the Court deems a local

investigation to be requisite or proper for the purpose of

elucidating any matter in dispute, or of ascertaining the

market-value of any property, or the amount of any mesne

profits or damages or annual net profits, the Court may

issue a commission to such person as it thinks fit directing

him to make such investigation and to report thereon to the

Court.

7. The object of local inspection under Order XXVI

Rule 9 of CPC is to elucidate information at the instance of

the party who relies upon the same normally may not be

available to 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 to

the Court appointed for a particular purpose. The report of

the Commissioner within the suit shall form part of the

record. 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.

8. It is the case of the petitioner that the land in

an extent of Ac.0.20 cents situated in S.No.87/B covered

by T.P.No.30/1969 is open site, which is reserved for public

purposes only. The respondents 2 and 3 have colluded

with the 1st respondent and they are not interested in

protecting the site from construction by the 1st defendant.

Though, in the written statement of the 2nd respondent

pleaded that the allegation of the petitioner is false and the

Municipality is very much interested in protecting the site,

in the evidence of D.W.3 who is Town planning officer of

Municipality tried to create some confusion about the

nature and extent of the land reserved as open site and if

the Advocate commissioner is not appointed to inspect the

site, much prejudice will cause to the petitioner.

9. In Donadulu Uma Devi Vs. Girika

Katamaiah @ Basaiah,2 this High Court held that:

"When there is a dispute or issue with regards to identity of a property in a litigation it is necessary to appoint a Commissioner for localizing the property which may be even by taking necessary assistance from a qualified surveyor which will not amount to collecting evidence which is prohibited."

2013 (1) ALT 548

(2) In Shaik Zareena Kasam Vs. Patan Sadab

Khan,3 wherein this High Court held that:

"Whenever there is a dispute regarding boundaries or physical features of the property or any allegation of encroachment as narrated by one party and disputed by another party, the facts have to be physically verified, because, the recitals of the documents may not reveal the true facts and measuring of land on the spot by a Surveyor may become necessary".

10. Admittedly, there is a dispute between both

the parties with regard to nature of the property. If

there is a dispute with regard to nature of the property, it

is needed to assign an Advocate Commissioner to note

down the physical features of the schedule property.

Moreover, if an advocate commissioner is appointed, no

prejudice will cause to the respondents and after filing of

Advocate commissioner report, the respondents has got

an opportunity to file objections on the said report and

both the parties having opportunity to examine the

Advocate commissioner for their uncertainties. Hence,

2011 (4) ALD 231