Andhra Pradesh High Court - Amravati

Camerla Srinivasa Rao vs Konduru Srinnivasa Vara Prasad on 24 June, 2024

                                           1

 APHC010337292019
                     IN THE HIGH COURT OF ANDHRA PRADESH
                                   AT AMARAVATI                                 [3458]
                            (Special Original Jurisdiction)

               MONDAY ,THE TWENTY FOURTH DAY OF JUNE
                  TWO THOUSAND AND TWENTY FOUR

                                     PRESENT

       THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

                    CIVIL REVISION PETITION NO: 3002/2019

Between:

Damerla Srinivasa Rao                                                 ...PETITIONER

                                         AND

Konduru Srinivasa Vara Prasad and Others                        ...RESPONDENT(S)

Counsel for the Petitioner:

1. G V S MEHAR KUMAR

Counsel for the Respondent(S):

1. VENKATESWARA RAO B

The Court made the following:

The Civil Revision Petition is filed under Article 227 of the Constitution of

India against the order dated 20.08.2019 in I.A.No.620 of 2019 in O.S.No.55

of 2019 on the file of the Principal Junior Civil Judge, Repalle, Guntur District.

2. The petitioner is the plaintiff in the suit filed for declaration of title

and delivery of possession in respect of suit schedule property i.e.,

Plot No. "R" admeasuring156 square yards. The petitioner/plaintiff filed an

application under Order 26 Rule 9 of CPC, seeking the appointment of an

Advocate Commissioner. The learned Judge dismissed the said application,

observing that the appointment of an Advocate Commissioner would amount

to the collection of evidence. Hence, the present Civil Revision petition.

3. Heard Sri G.V.S. Mehar Kumar, learned counsel for the petitioner

and Sri B. Venkateswara Rao, learned counsel for the respondents.

4. The learned counsel for the petitioner contends that the

respondents encroached on the suit schedule property and started making

construction, raising the construction up to the lintel level. He also contends

that after filing the suit, the defendants made further constructions. He

contends that the report of the Advocate Commissioner would also enure to

the benefit of the Court in just adjudication of the dispute. He relies on a

decision of this Court in the case of Chennu Venkateswara Rao Vs.

Nattiboina Subba Rao.

4. The learned counsel for the respondents contends that the relief

sought by the petitioner is premature. Without leading evidence in support of

his claim, the petitioner is seeking the appointment of an Advocate

Commissioner to measure the land and note down the physical features,

which would amount to collection of evidence. It is contended that the

petitioner/plaintiff, in support of his case, is relying on a xerox copy of the Will,

and the original copy of the said Will document has not been filed along with

the suit. The learned counsel contends that they are the real owners of the

property, having got the subject property under a gift deed dated 23-06-1997

and another gift deed dated 15-04-2006. By removing the old ACC roof

house, they have constructed a new RCC building. And that the trial in the

case has not yet commenced. He relies on a decision of this Court in the

case of Malla Bhaskara Rao & Ors. Vs. Kochada Ananda Rao,1 in support

of his submission that the appointment of Advocate Commissioner in the facts

of the case would be premature.

5. The suit is for declaration of title and for mandatory injunction to

remove the alleged illegal constructions. In the suit, the issues for adjudication

have not been framed. The learned counsel for the respondents submits that

the trial in the case has not yet commenced and the plaintiff must establish his

title over the suit schedule property with reference to his documents.

6. Whereas the learned counsel for the petitioner contends that the

respondents/defendants encroached into the suit schedule property and

raised construction up to lintel level. In the circumstances, it is necessary to

note down the physical features and measure the plaint schedule property

with the assistance of Mandal Surveyor as per the documents.

7. Considered the rival submissions, the point for consideration is:-

Whether the Advocate Commissioner can be appointed to note

down the physical features of the suit schedule property, even

before the trial could be commenced?

1995(5) ALT 236

8. This Court in the case of N. Savitramma & anr., Vs. B. Changa

Reddy2, after referring to the decision of Madras High Court in the case of In

re P. Moosa Kutty 3 , the decision of this Court in the case of

C. Veeramma Vs. C. Venkatachalam4, observed as under:

"12. In my view, the above observations of Lakshminarayana Reddy, J. in the two decisions are not only widely stated but also run contrary to the judgment of the division bench of this court in Veeranna's case and two other cases referred to by me I, therefore dissent from the learned judge and follow the Division Bench. Further, to say that it is "unthinkable" that a receiver could be appointed to note the physical features of any property, appears to me to be an extreme view. The plaintiff could, in my view, certainly take the assistance of the court to have the physical features of property noted by an officer of the court namely, an Advocate- commissioner, before the said features are obliterated either by the opposite party or by the vagaries of the nature. If the physical features of the land as on the date of the suit are allowed to be obliterated and a commissioner is to be appointed several years after the filing of the suit or at the end of the trial or during the trial, the very object of getting the best evidence before the court would be frustrated. That would enable the defendants in the suit to take advantage of their might and alter the physical features of the land and also protract the trial till such time that those features were obliterated by lapse of time or by the defendants action to. The physical features noted by the commissioner would be the evidence in the case as provided in Or.26 R.10(2) which states as follows:-

"Or.26 R. 10(2): Report and dispositions to be evidence in suit: The report of the commissioner and the evidence taken

(1988) 1 AP L J 45 (AP)

AIR 1953 Madras 717

AIR 1959 AP 170

by him (but not the evidence without the report) shall be evidence in the suit and shall from part of the record; but the court or with the permission of the court, any of the parties to the suit may examine the commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report or as to the manner in which he has made the investigation"

9. It is the case of the petitioner that after filing of the suit the

petitioner started construction of a building by encroaching into suit schedule

property. The contention of the petitioner as stated in the I.A., is as follows:-

"3. Recently, the defendants began to construct a RCC Building in the encroached portion i.e., plaint plan Plot No.R. The defendants constructed the same upto lintel level. From the beginning I objected for the said construction and they stopped the said construction upto filing of order 9, rule 7 petition before the Hon'ble Court. After filing the petition the defendants again began to construct a building in the encroached portion i.e., plaint plan plot No.R. In the circumstances if the defendants constructed a pucca building it is very difficult to me."

10. The suit is for declaration of title and for a mandatory injunction to

remove the illegal constructions made by the defendant. In the facts of the

present case, if the Advocate Commissioner is not appointed on the pretext

that the trial has not yet commenced in the suit, the physical features as on

the date of filing of the suit may be obliterated. In view of the same and by

relying on the principle laid by this Court in the case referred supra, this Court

is of the considered view that the appointment of an Advocate Commissioner

to note down the physical features of the suit schedule property would come in

aid for adjudication of the dispute between the parties.

11. The order under revision is set aside, allowing the Civil Revision

Petition in part, directing the learned Principal Junior Civil Judge, Repalle,

Guntur District, to appoint an Advocate Commissioner to note down the