Smt. K Sugunamma, Mahabubnagar ... vs A. Nageshwar, Mahabubnagar Dist
2021 Latest Caselaw 2563 Tel

           THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

            CIVIL REVISION PETITION No.637 of 2017

ORDER:

This revision is filed challenging the order dated 16.11.2016 in

I.A.No.234 of 2016 in A.S.No.28 of 2013 passed by the Judge, Family

Court-cum-VIII Additional Sessions Judge, Mahabubnagar.

2. The petitioner is the appellant in A.S.No.28 of 2013 and the

defendant in O.S.No.106 of 2007 on the file of the Senior Civil Judge,

Mahabubnagar. The said suit was instituted by the respondent for

declaration and recovery of possession and for mandatory injunction in

respect of Plot No.2 admeasuring 550 sq. yards in Sy.No.106,

Badepally village, Jadcherla Mandal, Mahabubnagar District, against

the petitioner herein and other defendants. The suit was decreed vide

judgment dated 30.07.2013. Aggrieved thereby, the petitioner

preferred an appeal. During the pendency of the appeal, the petitioner

filed I.A.No.234 of 2016 under Order 26 Rule 10(A), 9 read with

Sections 107(2) and 151 CPC for appointment of Advocate

Commissioner to get the land in Sy.No.106 of Badepally Village

surveyed with the Assistant Survey Officer and to report to the Court

whether the petitioner's house is in Plot No.2 in Sy.No.106 of

Badepally village, Jadcherla Mandal, for proper and effective

adjudication of the appeal.

3. In support of the said application, the petitioner stated that the

respondent/plaintiff claimed title to the suit property under Exs.A1 to

A3 documents. That the original owners, under Ex.A3, sold an extent

of Ac.0.4½ guntas of land in Sy.No.106 without any plot numbers.

The petitioner/defendant claimed title to the suit property to an extent

of 200 sq. yards under Exs.B1 and B2. Ex.B2 is his vendor's sale deed.

The petitioner and the respondent claimed title through the same

source, who executed Exs.A3 and B2. The burden of proof is on the

respondent/plaintiff to prove his case. The trial Court committed grave

legal flaw by shifting the burden on the petitioner/defendant on the

ground that Plot No.2, in which the petitioner has constructed his

house and staying in it, is not mentioned in his vendor's sale deed

Ex.B2 as situated in Sy.No.106 though his property and that of his

vendor are clearly identifiable under Exs.B1 and B2. It was further

stated in the affidavit that the petitioner got elicited through P.W.3, in

cross-examination, that plot Nos.1 to 10 are situated in Sy.No.106 of

Badepally village, Jadcherla Mandal. The trial Court did not consider

the said evidence and for effective adjudication of the appeal, it is just

and necessary to allow the petition for appointment of Advocate

Commissioner.

4. In the counter filed by the respondent/plaintiff, it was stated

that though the petitioner and the respondent claimed through same

vendor, the petitioner had falsely relied on the rectification deeds and

claimed that her site also falls in Sy.No.106. The trial Court has rightly

come to the conclusion that the link document to the document of the

petitioner does not contain any survey number in which her alleged

plot is located and hence, the petitioner cannot contend that she was

in possession of a plot in Sy.No.106. The petitioner relied on Exs.B3

and B4, alleged rectification deeds, which were brought into existence

subsequent to the filing of the suit and they do not pertain to the

alleged plot of the petitioner. The petitioner admitted under Ex.B2 that

there is no mention of survey number in which the suit plot is situated.

There are no merits in the petition. The petitioner has not made out

any grounds seeking appointment of Commissioner. The petitioner

intended to lead additional evidence by filing such petition, which is

not permissible in law.

5. The Court below dismissed the said application under the

impugned order dated 16.11.2016 by noting that the parties have to

prove their case in accordance with their pleadings; the availability of

documentary evidence on hand excludes oral evidence to some extent

except in some circumstances; the merits of the case will be seen in

the appeal; there is no controversy in respect of the location of the

property by both parties and therefore, there is no need to appoint

Advocate Commissioner as prayed for.

6. Mr. Suresh Babu, learned counsel representing Mr. B. Nagarjuna

Reddy, learned counsel for the petitioner, submitted that an Advocate

Commissioner can be appointed at the appellate stage as held by this

Court in BANDI SAMUEL v. MEDIDA NAGESWARA RAO1.

The crucial aspect in the appeal is to decide whether the suit property

is situated in Sy.No.106 or not and thus, appointment of Advocate

Commissioner is necessary; title documents of the respondent/plaintiff

under Exs.A1 to A3 do not disclose true identification of the property

and burden is on the plaintiff; but the trial Court surprisingly shifted

the burden of proof on the petitioner. The appellate Court is also a

Court of fact and appointment of Advocate Commissioner is necessary

for better and effective adjudication of the case.

7. Mr. K. Venkatesh Gupta, learned counsel for the

respondent/plaintiff submitted that there is no dispute with regard to

the location of the property situated in Sy.No.106. A frivolous petition

is filed for appoint of Advocate Commissioner to drag the proceedings

and for collecting evidence, which is not permissible in law.

2017 (1) ALD 582

8. Heard both sides.

9. This Court is of the view that the application for appointment of

Advocate Commissioner is filed in the guise of adducing additional

evidence. Having suffered an adverse judgment before the trial Court,

the petitioner is trying to improve her case by seeking appointment of

Advocate Commissioner. The claim of the petitioner and the

respondent is based on documentary evidence. Having considered the

oral and documentary evidence, the trial Court decreed the suit in

favour of the respondent/plaintiff. It is the contention of the

petitioner/defendant that the trial Court erroneously shifted the burden

on the petitioner/defendant and in a suit for declaration, the burden is

on the plaintiff and it is settled law, the plaintiff cannot rely on the

weakness of the defendant. In the opinion of this Court, based on such

contention, it is not permissible for the petitioner to file an application

for appointment of Advocate Commissioner.

10. The judgment in BANDI SAMUEL's case (supra) relied upon by

the petitioner is not helpful to advance his case. In the said case,

the application for appointment of Advocate Commissioner was filed

under Order XXVI Rule 9 CPC for measurement and demarcation of the

lane by measuring the property of the plaintiff and the defendant.

The said application was filed during the pendency of the suit before

the trial Court. The learned Judge by discussing the law laid down on

the subject made certain observations and gave liberty to the

petitioner therein to file a fresh petition for appointment of Advocate

Commissioner for measurement and demarcation of the disputed lane

and for noting of physical features. The fact situation herein is totally

different and moreover, the application herein is filed at the appellate

stage.

11. Having contested the suit and having not taken any steps to get

the Advocate Commissioner appointed before the trial Court and not

mentioning the circumstances which disabled the petitioner from filing

such an application before the trial Court, the petitioner has to

properly explain the necessity to do so at the appellate stage.

The petitioner has not given any explanation as to why he has not

taken such steps to file similar petition before the trial Court. At the

appellate stage, if the application is allowed, it would amount to

permitting the petitioner to fill up lacunae in his evidence. As pointed

out above, the petitioner is always at liberty to convince the appellate

Court that the burden of proof is erroneously shifted on him by the

trial Court and actually the burden is on the respondent/plaintiff to

prove his case. But that cannot be a ground at all to file an application

of this nature, which would otherwise amount to collection of evidence

and is not permissible in law.

In view of the above observations, the civil revision petition is

dismissed as being devoid of merits. Pending miscellaneous petitions,

if any, shall stand closed. There shall be no order as to costs.

__________________ B. VIJAYSEN REDDY, J September 9, 2021 DSK