Vasupalli Danayya vs Pinnmaraju Srinivas
2023 Latest Caselaw 4726 AP

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

C.R.P.No.1986 of 2023

Between:
Vasupalli Danayya S/o late Durgayya @ Durgappa,
Hindu, aged 35 years, residing at Kapuluppada,
Bheemili Mandal, Visakhapatnam.                                .. Petitioner

And

Pinnmaraju Srinivas S/o Seshagiri Rao, Hindu,
Aged 38 years, residing at North Extension,
Seethammadara, Visakhapatnam and others                      .. Respondents

DATE OF JUDGMENT PRONOUNCED: 06.10.2023


SUBMITTED FOR APPROVAL:

       HON'BLE SRI JUSTICE U. DURGA PRASAD RAO


1. Whether Reporters of Local newspapers           Yes/No
   may be allowed to see the Judgments?


2. Whether the copies of judgment may be           Yes/No
   marked to Law Reporters/Journals?


3. Whether Their Ladyship/Lordship wish to         Yes/No
   see the fair copy of the Judgment?


                                                _________________________
                                                U. DURGA PRASAD RAO, J
                                        2


          *HON'BLE SRI JUSTICE U.DURGA PRASAD RAO



+ C.R.P.No.1986 of 2023



%06.10.2023

# Vasupalli Danayya S/o late Durgayya @ Durgappa,
Hindu, aged 35 years, residing at Kapuluppada,
Bheemili Mandal, Visakhapatnam.                        .. Petitioner

Vs.

$ Pinnmaraju Srinivas S/o Seshagiri Rao, Hindu,
Aged 38 years, residing at North Extension,
Seethammadara, Visakhapatnam and others             .. Respondents

<GIST:

>HEAD NOTE:

! Counsel for petitioner: Sri P.Rajasekhar


 Counsel for respondents: Sri Bodduluri Madhu




? CASES REFERRED:

1) AIR 2012 SC 1727
2) (2016) 3 ALT 477
                                  3


     HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

             Civil Revision Petition No.1986 of 2023

ORDER:

The challenge in this C.R.P. filed under Article 227 of the

Constitution of India by the petitioner/plaintiff is to the order in

I.A.No.766/2015 in O.S.No.247/2009 passed by learned I

Additional Senior Civil Judge, Visakhapatnam dismissing the

petition filed by the petitioner seeking appointment of Advocate

commissioner to localize the suit property and measure with the

assistance of licensed Surveyor and note down its physical

features.

2. The petitioner is plaintiff in O.S.No.247/2009 seeking

permanent injunction in respect of Ac.0.93 cents of land in

Sy.No.294/2. The 1st respondent claims to be in possession of

Ac.0.23 cents out of said Ac.0.93 cents in Sy.No.294/2. The trial is

under way.

3. At this juncture, the petitioner filed I.A.No.766/2015 seeking

appointment of Advocate commissioner. The trial Court having

observed that as the suit is essentially one for permanent injunction

wherein the plaintiff has to establish his lawful possession,

appointing Advocate commissioner for localization of suit property

and measuring the same with the help of Surveyor and noting down

its physical features will not in any way assist the Court for

effective disposal of the suit, rather the appointment of the

Advocate commissioner tantamounts to collection of evidence,

dismissed the petition.

4. Heard learned counsel for petitioner Sri P.Rajasekhar and Sri

Bodduluri Madhu, learned counsel for respondents.

5. In his effort to convince the Court showing the justification

for appointment of an Advocate commissioner, learned counsel for

petitioner Sri P.Rajasekhar would argue that according to the

petitioner, he has been in effective possession and enjoyment of the

suit property comprising Ac.0.93 cents of land wherein he raised

two sheds for his watchmen and constructed a compound wall

around the suit property, whereas, the respondents contend to have

purchased Ac.0.23 cents out of the said Ac.0.93 cents and

constructed a boundary wall around their property which is

strongly opposed by the petitioner, if an Advocate commissioner is

appointed to localize and noting down the physical features of suit

property, the trial Court will be clearly informed as to whether one

boundary wall is in existence around entire suit property or there

are two boundary walls and that crucial fact will help the trial

Court to adjudicate the suit in a proper and effective manner.

6. Relying upon the decision in Maria Margarida Sequria

Fernades and Others vs. Erasmo Jack de Sequeria (Dead)

through L.R.s1 learned counsel would argue, as is held by the

Hon'ble Apex Court, truth is the glowing star in judicial process

and to arrive at the absolute truth and to uphold the saying

'Satyameva Jayate', the Court must follow the modern

jurisprudence and try to find out the truth. He would thus submit

that in such endeavor, the Court can appoint the commissioner for

elucidating the truth. He placed reliance on the decision

AIR 2012 SC 1727

Mohammed Jaffer Abdul Quadeer Qureshi vs. Aziz-ur-

Rehman Qureshi2.

7. Per contra, learned counsel for respondents while supporting

the impugned order would submit that as the suit is primarily for

perpetual injunction, the burden of proof is on the plaintiff to

establish his title and lawful possession over the suit schedule

property and it is immaterial whether there existed one or two

compound walls in the suit schedule property and even if one or

two compound walls are existed thereon, during the localization,

the commissioner cannot gather evidence as to who constructed

those compound walls. Gathering of such information and

incorporating in the report would amount to collection of evidence

which otherwise is the duty of the plaintiff to place in the form of

evidence for appreciation of the Court. He thus prayed to dismiss

the C.R.P.

8. The point for consideration is whether there are merits in the

C.R.P. to allow and appoint an Advocate commissioner for

(2016) 3 ALT 477

localization of the suit property and to record the physical features

thereon?

9. Point: Gone through the pleadings and submissions of either

party. The suit is filed for perpetual injunction over an extent of

Ac.0.93 cents out of Ac.1.04 cents in Sy.No.294/2 of Kapullupada

Village. The petitioner/plaintiff claims Ac.0.93 cents out of Ac.1.04

cents. The remaining extent Ac.0.11 cents was said to be acquired

by the Government for widening the beach road and the remaining

Ac.0.93 cents is said to be in effective possession of plaintiff and

due to natural calamities, this land which was originally an

agricultural land remained barren, unfit for cultivation and

therefore, the plaintiff claims to have constructed two sheds for the

residence of his watchmen and also constructed a boundary wall

around the property and erected a gate. As per the pleadings of the

respondents, the 1st respondent purchased Ac.0.23 cents in

Sy.No.294/2 under a registered sale deed dated 30.06.1998 from

one Dr.P.Kumar. Earlier the said Dr.P.Kumar along with his

relatives including Durgaiah, the father of plaintiff purchased entire

Ac.1.04 cents in Sy.No.294/2 through a registered sale deed dated

22.06.1981 and later the said Durgaiah and other relatives

relinquished their respective shares over the Ac.1.04 cents in

favour of Dr.P.Kumar. Thus, whilst the petitioner claims to be in

possession of an extent of Ac.0.93 cents in Sy.No.294/2, 1st

respondent claims to have been in possession over an extent of

Ac.0.23 cents out of Ac.93 cents in Sy.No.294/2. It appears that the

trial Court had already taken up evidence of both parties and at that

juncture, the petitioner filed I.A.No.766/2015 seeking appointment

of an Advocate commissioner which was dismissed by the trial

Court holding that the commissioner cannot be appointed for

collection of evidence and the appointment of commissioner will

not assist the Court in deciding the true controversy involved in the

suit.

(a) Therefore, it has now to be seen whether appointment of

Advocate commissioner for localization, noting the physical

features and measurements of the suit schedule property will in any

way assist the trial Court in adjudicating the real controversy i.e.,

whether the plaintiff has title and lawful possession over the entire

extent of Ac.0.93 cents or not.

(b) Jurisprudence on the appointment of Advocate

commissioners particularly in a suit for injunction, is not in

drought. In a plethora of decisions it was held that there is no

embargo on appointment of Advocate commissioner even in a suit

for perpetual injunction, if the circumstances so warrant. The

thumb rule is that generally the Courts will be at loath to appoint

Advocate commissioner for fishing out the evidence i.e., which of

the two parties is in possession of plaint schedule property. Such a

fact has to be established by the parties by way of cogent evidence

for appreciation of the Court and it is not for the Court to collect

the evidence on such fact by appointment of commissioner.

(c) However, in respect of other facts emanating from an

injunction suit, the Court can exercise its discretion to appoint

Advocate commissioner. For instance, in a suit for injunction if

physical features alleged to be effaced by one of the parties and in

such cases, the appointment of commissioner may help in only

recording the existing features without further stating as to how

such physical features came into existence and who created them at

what point of time etc. Similarly, in a suit for injunction,

demarcation of boundaries may sometimes be necessitated for

effective disposal of the suit. Then the commissioner at the

discretion of the Court can be appointed. Sometimes, in a suit for

injunction measurements of the suit property may be required to

know the exact extent of the suit property. Any amount of

documentary evidence may not give the correct status of the

property on ground and in such circumstances, the Court can

consider appointment of commissioner. These instances are only

inclusive but not exhaustive. However as already noted supra,

before appointing an Advocate commissioner, the Court has to

consider whether such appointment will lead to collection of

evidence which the parties can by other mode of evidence place

before the Court or such appointment of Commissioner will place a

clear picture for effective adjudication of the real controversy in the

matter. In the former case, the Court may not appoint a

commissioner but in the later the Court may consider for

appointment of commissioner. In these lines, there are a number of

decisions. One such decision rendered by a learned Single Judge of

the High Court of Judicature at Hyderabad for the State of

Telangana and the State of Andhra Pradesh is in Bandi Samuel

and others vs. Medida Nageswara Rao3. In the said decision

learned Judge has referred a number of judgments which dealt with

appointment of Advocate commissioner in injunction suits. The

judgments cited by the petitioner in the instant case also of the

same ilk.

10. With the jurisprudence thus gained as above, when the case

on hand is considered, we will find no such expediency to appoint

an Advocate commissioner as sought for by the petitioner/plaintiff.

It being a suit for perpetual injunction, as rightly observed by the

trial Court, the burden of proof is always on the plaintiff to

establish his lawful title and possession over the suit schedule

property. The identity, its location and extent of the suit schedule

property is not in controversy. Rather the defendant claims some

extent of the property over the suit property. Having regard to the

nature of the controversy, appointment of commissioner for

localization taking measurements and noting physical features, in

my considered view will not advance any purpose in an

2017(1) ALT 493=MANU/AP/0896/2016

appreciable degree for adjudication of the real controversy in the

suit. Therefore, trial Court's order dismissing the petition does not

suffer the vices of illegality, irregularity and the jurisdictional error

to warrant interference.

11. Accordingly, the C.R.P. is dismissed. No costs.

As a sequel, interlocutory applications pending, if any, shall

stand closed.

_________________________ U.DURGA PRASAD RAO, J 06.10.2023 NNN