Adi Swapna vs Sikha Krishna And Another
2022 Latest Caselaw 4831 Tel

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

           CIVIL REVISION PETITION No.1731 OF 2022

ORDER:

This civil revision petition is filed by the petitioner-respondent-

plaintiff aggrieved by the order dated 26.07.2022 in I.A No.1 of 2022

in O.S No.144 of 2017 passed by the Principal Junior Civil Judge cum

Judicial Magistrate of First Class at Kothagudem.

2. Heard learned counsel for the petitioner and the learned

counsel for the respondents.

3. The learned counsel for the petitioner submitted that the

petitioner filed a suit for perpetual injunction claiming that he was the

owner and possessor of the suit schedule property, which was a vacant

house site to an extent of 266.66 Sq. yds., in plot No.18 in Sy.No.805,

situated at Paloncha Revenue Village, Paloncha Town and

Municipality, Khammam District. The respondents-defendants filed

written statement contending that no survey number 805, shown by

the plaintiff, was available in the revenue records of Paloncha, as per

the information obtained by them under Right to Information Act vide

RC No.RTI/A612014, dated 22.08.2014. The trial was commenced in Dr.GRR,J

the above suit and the petitioner-plaintiff adduced evidence and the

matter was posted for defendants' evidence. The affidavit of DW.1

was also filed and Exs.B1 to B3 were marked. When the matter was

coming for defendants' further evidence, at that stage, the

respondents-defendants filed I.A No.1 of 2022 seeking appointment of

an Advocate Commissioner to locate the schedule property with the

help of Mandal Surveyor. The said petition was allowed by the trial

court vide order dated 26.07.2022.

3.1 The Court below ought to have seen that allowing I.A No.1

of 2022 in O.S No.144 of 2017 was only for collection of evidence.

The respondents-defendants were not having any title or right or

possession or interest either in Sy.No.802 or 805 as the original owner

had sold the entire land in Sy.No.802 to an extent of Ac.1.26 gts., of

Paloncha Revenue Village long back in the year 1965 and the names

of subsequent purchasers had been entered in revenue records, pahanis

and pattas. So, the question of appointment of an advocate

commissioner for demarcating the lands would not arise. The

defendants had not filed any piece of document in support of their

having land in Sy.No.805 except making allegations. The court below Dr.GRR,J

erred in coming to a conclusion for appointment of advocate

commissioner for demarcating the land in Sy.No.802 and Sy.No.805.

No documentary proof was submitted by the respondents-defendants

to prove the land in Sy.No.802 and hence, there was no locus standi

for the respondents-defendants to seek appointment of advocate

commissioner for demarcation of land with the help of Mandal

Surveyor and prayed to set aside the order dated 26.07.2022 in I.A

No.1 of 2022 in O.S No.144 of 2017 passed by the Principal Junior

Civil Judge cum Judicial Magistrate of First Class, Kothagudem. He

relied upon the judgments of this Court in A. Gopal Reddy v. R.

Subramanyam Reddy and another1, Dammalapati Satyanarayana

and others v. Datla Venkata Ramabhadra Raju @ D.V.R. Raju

and another2, and Arvind Kumar Agarwal v. Legend Estates (P)

Ltd., Ranga Reddy District, Hyderabad3.

4. Learned counsel for the respondents, on the other hand,

submitted that the respondents - defendants had taken a specific plea

that no Survey No.805 was available in Paloncha Revenue Records. It

was necessary to appoint an advocate commissioner to locate the

2013 (4) ALD 347

2006 (4) ALD 675

2015 (2) ALD 206 Dr.GRR,J

petition schedule property with the help of Mandal Surveyor. The

trial court rightly allowed the petition for effective adjudication of the

matter in controversy and relied upon the judgments of this court in

Smt. A. Laxmamma and another v. Smt. A. Venkatamma and

another4, M.Yadaiah and another v. M. Chilkamma and others5

and Adarsh Constructions, Hyderabad and another v.

Qamaarunnissa Begum and another6.

5. Now, the point for consideration is:

Whether the order of the trial court in allowing the petition for appointment of Advocate Commissioner is proper or not?

6. POINT:

Admittedly, the suit is filed for the relief of perpetual

injunction. The only question that arises in the suit is whether the

plaintiff is in possession and enjoyment of the schedule property. The

burden rests upon the plaintiff to prove his possession. The parties

cannot be permitted to gather evidence to prove their possession. They

have to satisfy the court through oral and documentary evidence. As

observed by this Court in A. Gopal Reddy v. R. Subramanyam

2016 (6) 795 (DB)

2022 (2) ALT 80 (TS)

2022 (3) ALT 662 (TS) Dr.GRR,J

Reddy and another (1 supra), appointment of commissioner at the

instance of the defendant in a suit for perpetual injunction is a rare

phenomenon. This Court observed that:

"The occasion to appoint an advocate-commissioner would arise, if only the trial of the suit is in progress and a typical question, which needs the examination by a commissioner arises. The appointment of a commissioner cannot be made at the threshold. Such an effort would be treated as a measure to gather evidence.

7. This court in Dammalapati Satyanarayana and others v.

Datla Venkata Ramabhadra Raju @ D.V.R. Raju and another (2

supra) observed that:

"6. The result of allowing the I.A. is that the Advocate Commissioner shall undertake localization of the suit schedule property with the help of a competent surveyor, basing on the title deeds of both the parties. It must be noted that the so-called title deeds must be accepted by the Court in evidence, before they constitute the basis for identification of the property. The admissibility, relevance etc., of the sale deeds can be undertaken only at the stage of recording evidence. The demarcation of the land with reference to location, survey numbers etc., must be with reference to the title deeds, which are admitted by the Court in evidence. If the report is submitted, even before the evidence is adduced, a stage may come, where the whole trial will revolve around such report."

Dr.GRR,J

8. Further in Arvind Kumar Agarwal v. Legend Estates (P)

Ltd., Ranga Reddy District, Hyderabad (3 supra), this Court

observed that:

"A perusal of the plaint shows that the petitioner has given specific boundaries to his property. Therefore, the initial burden lies on him to prove the identity of his property by adducing his own evidence. It is only after both the parties adducing their respective evidence, if any ambiguity prevails with reference to the identity of the property, that the Court on its own or on the application of either party, may appoint an Advocate-Commissioner. In my opinion, in a case of this nature, an application for appointment of an Advocate-Commissioner at the threshold itself cannot be entertained as the same will amount to gathering evidence."

9. Thus, in all the above cases, this Court observed that if any

ambiguity prevails with reference to the identity of the property, only

after both the parties adduced their respective evidence, the

application for appointment of advocate commissioner could be

allowed, but not at the threshold as the same would amount to

gathering of evidence.

10. The contention of the learned counsel for the respondents

was that it was only for localization of the property whether the suit

schedule property was located in Sy.No.802 or 805, the advocate

commissioner was appointed but, not to gather evidence. The Dr.GRR,J

judgment relied by the learned counsel for the respondents in A.

Laxmamma and another v. Smt. A. Venkatamma and another (4

supra) would disclose that:

"5...There is no hard and fast rule or a settled position of law that an advocate commissioner cannot at all be appointed for any purpose in a suit for perpetual injunction. And, it cannot be laid down as a rule of thumb that in no suit for perpetual injunction, an advocate Commissioner can be appointed; however, the law is well settled that a Commissioner cannot be appointed to find out as to who amongst the parties is in possession of the suit property as it is the function of the Court to decide the issue as to who amongst the parties is in possession of the suit property and the said judicial function cannot be delegated to an advocate commissioner. Under law, in any suit in which the Court deems local investigation is requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to an advocate or any competent person and direct to make such investigation and to report to the Court.

6..... Orders in the nature of appointment of an advocate Commissioner to note down the physical features and boundaries of the disputed properties are incidental and complimentary in nature and assist the Court in arriving at a just decision in the lis unlike supplementary orders. .... Therefore, the appointment of a Commissioner, in the facts and circumstances of the instant case, would be helpful to the Court below in conclusively and effectively adjudicating the lis.

11. The other two cases relied by the learned counsel for the

respondents also would disclose that there was no absolute bar for

appointment of Advocate Commissioner in a suit for injunction Dr.GRR,J

simplicitor. The trial court allowed the petition on the ground that as

both the parties were disputing about the existence of suit schedule

property in the said survey number, if the advocate commissioner was

appointed, his report would be useful for better appreciation of

evidence put-forth by the competing parties and that it would not

amount to collection of evidence.

12. But, however, considering the contention of the learned

counsel for the petitioners that the defendants had not adduced any

evidence nor filed any documents in proof of their title or right or

possession till date and were relying only on the RTI information

letters issued by the Tahsildar, Paloncha stating that Sy.No.805 was

not found in the revenue records and if the Advocate Commissioner

was appointed at this stage, the entire trial would revolve around his

report only. Therefore, this Court finds merit in the contention of the

learned counsel for the petitioner.

13. As such, it is considered fit to allow the revision case

setting aside the order of the trial court in I.A. No.1 of 2022 in O.S.

No.144 of 2017 appointing advocate commissioner at this stage. Only

after defendants adduced their evidence, if the court still considers Dr.GRR,J

necessary to appoint an advocate commissioner, then the court below

can appoint the advocate commissioner as the same would not amount

to gathering of evidence.

14. In the result, the civil revision petition is allowed setting

aside the order dated 26.07.2022 passed in I.A. No.1 of 2022 in O.S.

No.144 of 2017 by the Principal Junior Civil Judge cum Judicial

Magistrate of First Class, Kothagudem, appointing the Advocate

Commissioner. However, the trial court can appoint the Advocate

Commissioner only after the defendants adduced their evidence, if it

considers necessary, as the same would not amount to gathering of

evidence.

Pending miscellaneous petitions, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J September 22, 2022 KTL