Panga Yadagiri vs Resoju Pabhucharana
2023 Latest Caselaw 1547 Tel

      THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

        CIVIL REVISION PETITION No.572 of 2023

ORDER:

The present Civil Revision Petition, under Article 227 of the

Constitution of India, is filed by the petitioner/plaintiff,

aggrieved by the orders dated 10.01.2023 passed in I.A.No.514

of 2022 in I.A.No.374 of 2022 in O.S.No.661 of 2022 by the

Senior Civil Judge, at Warangal, wherein the I.A.No.514 of 2022

filed by the respondents herein/defendants under Order XXVI

Rule 9 r/w Section 151 CPC, seeking to appoint an Advocate

Commissioner to Survey and localize the suit schedule land and

see whether it falls in Sy.Nos.1240/W, 1240/7 as claimed by the

plaintiff or Sy.Nos.1240/I, 1240/F, 1240/G as claimed by the

defendants, was allowed by the trial Court.

2. Heard the learned counsel for the petitioner and learned

counsel for the respondents and perused the record.

3. The learned counsel for the petitioner/plaintiff has

contended that even before filing of the written statement by

the respondent/defendant No.2, framing of issues, adducing any

evidence by the parties, the question of appointing an Advocate

Commissioner for the purpose of surveying and localizing the

suit schedule land with that of the land claimed by the

defendants in a bare suit for injunction does not arise. The

learned counsel has stated that the trial Court has erred in

ordering the I.A.No.514 of 2022 and appointing an Advocate

Commissioner for the purpose of surveying and localizing the

suit schedule land at the threshold even before the filing of the

written statement is not permissible under law. The learned

counsel has further stated that the petitioner/plaintiff is claiming

right over the suit schedule property through a registered gift

deed whereas the respondents/defendants are claiming through

an unregistered document. That in a bare suit for injunction, the

only question that the Court has to look into is whether the

plaintiff is having prima facie title, physical possession and any

irreparable damage that would arise if the injunction is not

granted. That the appointment of Advocate Commissioner at

the threshold, more so at the instance of the defendant would

amount to gathering of evidence, which cannot be permitted.

The learned counsel has relied on the following judgments:

i) Arvind Kumar Agarwal vs. Legengs Estates (P) Limited1

ii) A. Gopal Reddy vs. R. Subramanyam Reddy and others2

MANU/AP/2250/2014

MANU/AP/0382/2013

iii) Raama Radhakrishnan vs. V.P.Radhakrishnan3

iv) Budarthi Janaki vs. Sikha Krishna and others4

v) Dammalapari Satyanarayana and others vs. Datla Venkata Ramabhadra Raju @ D.V.R.Raju and another5

4. Per contra, the learned counsel appearing on behalf of

respondents/defendants has stated that there is a serious

dispute with regard to the identity of the property claimed by

both the parties. That the petitioner/plaintiff is claiming land in

Sy.Nos.1240/W, 1240/7 to an extent of 400 sq.yards, whereas

the respondents/defendants are claiming land in Sy.Nos.1240/I,

1240/F and 1240/G to an extent of Ac.0-21gts, situated at

Paidipally Village of Hanumakonda Mandal and District. It is

further stated that the respondents/defendants have already

filed a suit in O.S.No.80 of 2016 before the Principal Senior Civil

Judge, Hanumakonda, in which Panga Mariya, wife of the

petitioner/plaintiff herein is arrayed as defendant No.7 and in

the said suit, interim injunction orders restraining the

respondent No.7 not to make any further construction over the

property was granted. That the said Panga Mariya in order to

get over the said injunction order granted in O.S.No.80 of 2016

on the file of Principal Senior Civil Judge, Hanumakonda, have

MANU/TN/3189/2022

MANU/TL/1667/2022

2006 SCC OnLine AP 319 : (2006) 4 ALD 675

got the present suit filed before the Senior Civil Judge, at

Warangal by her husband. The learned counsel has stated that

there is no legal embargo for appointing an Advocate

Commissioner for the purpose of surveying and localizing the

suit schedule property, more-so when there is a serious dispute

with regard to the localization and identity of the suit schedule

property. In support of his contentions, the learned counsel has

relied upon the following judgments:

i. E. Sanjeeva Reddy, Adilabad, vs. M.A.Masood6

ii. P. Sreedevi vs. IVLN Venkata Lakshmi Narsimha Prasad7

iii. VA Innova Alloy Steel Tech. Pvt. Ltd., Hyderabad vs. Avinash Daga8

5. Admittedly, in the present case, the only question that

arises before this Court is, whether in a suit for bare injunction,

an Advocate Commissioner can be appointed for the purpose of

surveying and localizing the suit schedule property with that of

the land claimed by the respondents/defendants even before the

written statement is filed or issues are framed.

2019 0 Supreme (Telangana) 413 = 2020 (2) ALD 275

2020 (6) ALD 99 (TS) (DB)

2021 (1) ALD 92 (TS)

6. Even though the learned counsel for the petitioner has

relied on the judgment in Arvind Kumar Agarwal's case (1

supra) to buttress her contention that in a suit for injunction,

Advocate Commissioner cannot be appointed but the learned

Single Judge at Para 3, has held as under:

"3. Ordinarily, in a suit for injunction, an Advocate Commissioner is not appointed to gather evidence. Only in cases where there is a serious dispute regarding identity of the property or boundaries thereof, an Advocate-Commissioner can be appointed even in the suits filed for injunction (See : Haryana Wakf Board Vs. Shanti Sarup and other (MANU/SC/7838/2008: (2008) 8 SCC 671: 2008 AIR SCW 2500) and Varala Ramachandra Reddy Vs. Mekala Yadi Reddy and others (MANU/AP/0104/2010 : 2010 (4) ALD 198)."

Therefore, the said judgment does not support the case of the

petitioner but on the other hand supports the contentions raised

by the respondents.

7. That insofar as the decision in A. Gopal Reddy's case (2

supra) is concerned, the Advocate Commissioner therein was

appointed for the purpose of noting down the existing features

in the suit schedule land viz., a hut and construction of

compound wall and the learned Single Judge in that context has

held that appointment of Advocate Commissioner would amount

to gathering of evidence.

8. Insofar as the decision in Raama Radhakrishnan's case

(3 supra), is concerned, the revision petitioner therein/plaintiff

filed the suit for injunction in respect of schedule 'A' property

and when the Advocate Commissioner was appointed for the

purpose of measuring schedule 'A' and 'B' properties, the

defendant therein contended that schedule 'B' property is not

the subject matter of the suit and therefore, the appointment of

the Commissioner to measure and determine the nature of

schedule 'A' and 'B' properties would not have been granted. In

that context, the Court has held as under:

"15. The real object of the provisions under Order XXVI Rule 9 of CPC is only to assist the Courts in appreciating the evidence to arrive at a just conclusion. The said provision is very clear and lucid and its scope is very limited for the only purpose mentioned therein. Appointment of advocate Commissioner cannot be taken as a tool by the parties to prove or disprove a claim, even before exhausting the classic method of proof by adducing oral and documentary evidence before the Court during the process of trial. Growing tendency of the litigants to collect evidence at the threshold by invoking the provisions of Order XXVI Rule 9 of CPC is to be deprecated.

16. Therefore, the parties are at liberty to establish their respective cases by adducing oral and documentary evidence before the Court during trial and it is not the business of the Court to collect evidence in favour of a party."

9. In Budarthi Janaki's case (4 supra), the plaintiff therein

filed the suit for injunction in respect of house site admeasuring

263 sq.yards in Plot No.17 in Sy.No.805, situated at Paloncha

Revenue Village, Paloncha Town and in the said suit, the

defendants had taken a plea that Sy.No.805 was not in

existence and therefore, sought for appointment of Advocate

Commissioner to locate the schedule property with the help of

Mandal Surveyor. In that context, the learned Single Judge of

this Hon'ble Court held as under:

"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.143 of 2017 appointing Advocate Commissioner at this stage. Only after defendants adduced their evidence, if the Court still considers 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."

10. In Dammalapari Satyanarayanana's case (5 supra), the

plaintiff therein filed suit for declaration of title and injunction

and a counter claim was filed for recovery of possession. In the

said suit, the defendants filed an application for appointment of

Advocate Commissioner for the purpose of localizing the suit

schedule property, with the help of competent Surveyor and to

undertake certain ancillary steps. In the said decision, a learned

Single Judge of the erstwhile High Court of Judicature, Andhra

Pradesh at Hyderabad, observed as follows:

"In their suit, the petitioners pleaded for the Petitioners that they purchased the property from their vendor with definite boundaries and by mistake, the Survey Numbers were mentioned as 339/5 and 6. They also pleaded that later on the Survey Numbers were rectified as 339/9 and 10, but the boundaries and the extent remained the same. The respondents, in turn, referred to certain transactions, in respect of the land, not only in the said Survey Numbers but also several other bits such as 339/9B, 9H, 91, 13B, 14A, 14B and 17A. Basically, these claims disclose that the parties are yet to be certain as to their claim in respect of any definite property. The Court has to identify the exact area of controversy and frame necessary issues. The parties, in turn, have to adduce oral and documentary evidence with reference to the issues, so framed. Unless these aspects are clear, appointment of an Advocate Commissioner would amount to an exercise to gather evidence."

In the instant case, as seen from the record, there is a serious

dispute with regard to the identity and localization of the land

claimed by the plaintiff which he claims that it is falling in

Sy.Nos.1240/W, 1240/7 to an extent of 400 sq.yards, whereas

the defendants are claiming that the suit schedule land is falling

in Sy.Nos.1240/I, 1240/F and 1240/G to an extent of Ac.0-21

gts, situated at Paidipally Village of Hanumakonda Mandal.

Moreover the respondents/defendants have already filed a suit

in O.S.No.80 of 2016 before the Principal Senior Civil Judge,

Hanumakonda, for declaration and recovery of possession in

respect of Ac.0-21 gts in Sy.No.1240/I, 1240/F and 1240/G, of

Paidipally Village, Hanumakonda Mandal, Warangal District, in

which Panga Mariya, wife of the petitioner/plaintiff is arrayed as

defendant No.7 and in the said suit and interim injunction orders

have been granted against her.

11. Here, it is apt to refer the judgments relied upon by the

learned counsel for the respondents/defendants. In E. Sanjeeva

Reddy, Adilabad's case (6 supra), wherein this Hon'ble Court

observed that "there is no rule that an Advocate Commissioner

cannot be appointed before issues are framed or evidence is led

and relied upon". In P. Sreedevi's case (7 supra), a Division

Bench of this Court held that "when plaintiffs are claiming land

in Sy.No.85/1, a separate sub-division of Sy.No.85 and the

respondents are claiming land in Sy.No.85/2, a different sub-

division in the same survey number, it was incumbent on the

part of the Court below to appoint an Advocate Commissioner

with the assistance of Surveyor for demarcation of the land and

it is part of the Court to direct investigation by appointing local

Commissioner under Order XXVI Rule 9 CPC". In VA Innova

Alloy Steel Tech. Pvt. Ltd., Hyderabad's case (8 supra), this

Court observed that "when there is a serious dispute regarding

the identity of the property or boundaries thereof, an Advocate

Commissioner can be appointed even in the suits filed for

injunction and that it does not amount to collecting or fishing

evidence".

12. The legal principle that can be culled out from the above

citations is that there is no legal embargo for appointment of

Advocate Commissioner even in a bare suit for injunction when

there is a serious dispute with regard to the identity and

localization of the suit schedule land. The Advocate

Commissioner can be appointed at any stage of the suit

depending on the facts and circumstances of each case. The

trial Court is free to appoint an Advocate Commissioner to

resolve the issue involved. In this particular case, there is a

serious dispute with regard to the identity and localization of the

property and the order passed by the trial Court cannot be

faulted with, which warrants any interference by this Court.

Moreover, if an Advocate Commissioner is appointed and the

suit schedule land is localized, it will resolve the issue between

the parties once for all and the Court will be in a position to

decide the lis between the parties more effectively. The

appointment of an Advocate Commissioner for the purpose of

surveying and localization of the suit schedule land when there

is a serious dispute with regard to the identity of the property

and in which Survey Number it is falling, cannot by any stretch

of imagination be construed as gathering of evidence. Having

regard to the above, this Court does not find any infirmity in the

order passed by the trial Court which warrants any interference.

The present Civil Revision Petition is devoid of merits and is

liable to be dismissed.

13. Accordingly, this Civil Revision Petition is dismissed.

Miscellaneous petitions, if any, pending in this Civil

Revision Petition, shall stand closed. No order as to costs.

_____________________ A. ABHISHEK REDDY, J Date: 10.04.2023 scs