Telangana High Court

Gangasani Narsimha Reddy vs Rama Venkata Narsaiah on 8 December, 2023

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

             Civil Revision Petition No.1039 OF 2019
ORDER:

Aggrieved by the order dated 14.03.2019 in I.A.No.135 of

2018 in I.A.No.366 of 2017 in O.S.No.870 of 2017 (hereinafter

will be referred as 'impugned order') on the file of learned VIII

Additional Senior Civil Judge, Ranga Reddy District at

L.B.Nagar, the plaintiffs filed the present Civil Revision Petition

to set aside the impugned order.

2. For the sake of convenience, hereinafter, the parties will

be referred as per their array before the learned VIII Additional

Senior Civil Judge, Ranga Reddy District at L.B.Nagar.

3. The brief facts of the case as can be seen from the record

available before this Court are that the plaintiffs filed suit vide

O.S.No.870 of 2017 on the file of learned VIII Additional Senior

Civil Judge, Ranga Reddy District at L.B.Nagar seeking

perpetual injunction in respect of suit schedule property i.e.,

land admeasuring Ac.1.17 guntas in Sy.No.67 situated at

Peddamberpet Village, Abdullapurmet against the defendants.

Along with the suit, the plaintiffs have also filed I.A.No.366 of

2017 seeing temporary injunction. During the pendency of the

suit, the plaintiffs have filed a petition in I.A.No.135 of 2018 in 2 MGP,J CRP_1039_2019

I.A.No.366 of 2017 under Order XXVI Rule 9 of the Code of Civil

Procedure to appoint an Advocate Commissioner to survey the

suit schedule property and fix the boundaries with the help of

Mandal Suveyor of Abdfullapur Mandal, R.R. District. To the

said petition, the defendants filed detailed counter denying the

averments of the petition and prayed to dismiss the petition.

The learned VIII Additional Senior Civil Judge, Ranga Reddy

District at L.B.Nagar after considering the rival contentions,

dismissed the petition. Aggrieved by the same, the plaintiffs

have filed the present Civil Revision Petition.

4. Heard learned counsel for the revision petitioner.

5. The first and foremost contention of the learned counsel

for the revision petitioners/plaintiffs is that the suit is based

upon the registered partition deed and no dispute of title with

the petitioners family was raised and it was to measure the

dispute with the respondents, the appointment of Commissioner

to measure the land with the help of Mandal Surveyor became

necessary. It is further contended that the respondents/

defendants being the neighbours claiming the petitioners' land

on the basis of certain false documents, cannot dispute the title

of the petitioners. The other contention of the plaintiffs is that

the trial Court erred in holding that if the application is allowed, 3 MGP,J CRP_1039_2019

it amounts to collection of evidence, as there is no dispute of

title nor regarding the measurement of the land and the only

defence taken by the respondents. In support of these

contentions, the learned counsel for the revision petitioners

relied upon decisions in K. Dayanand and another v. P.

Sampath Kumar 1, wherein the High Court for the Composite

State of Andhra Pradesh observed that for the related purpose of

clarifying the physical features of the suit schedule property,

there can be appointment of Commissioner even in a suit for

perpetual injunction. The learned counsel for the revision

petitioners/plaintiffs further relied upon a decision of this Court

in P. Sreedevi v. IVLN Venkata Lakshmi Narsimha Prasad 2,

wherein it was observed that the Commissioner in effect is a

projection of the Court appointed for a particular purpose; and

where there is an allegation of encroachment by one party

which is denied by the other, oral evidence cannot come to an

aid of a party and an Advocate Commissioner may be appointed

to ascertain this fact. The plaintiffs further placed reliance in

M. Yadaiah and another v. M. Chilakamma and others 3,

wherein this Court observed that appointment of Advocate

Commissioner to note down the physical features does not

1 2015 (2) ALD 319 2 2020 (6) ALD 99 (TS) (DB)

4 MGP,J CRP_1039_2019

amount to facilitating the party to collect evidence. The learned

counsel for the plaintiffs further relied upon a decision of the

Apex Court in Haryana Waqf Board v. Shanti Sarup and

others 4, wherein it was observed that the only controversy

between the parties was regarding demarcation of the suit land

because the land of the respondents was adjacent to the suit

land and the application for demarcation filed before the trial

Court was wrongly rejected.

6. A perusal of the principle laid down in the above said

decisions, it is evident that appointment of advocate

commissioner in injunction suits is permissible. But each case

depends on its own facts and circumstances. The facts in the

above said decisions are different from the facts of the case on

hand. As seen from the counter filed by the respondents/

defendants, they have admitted about the partition between the

plaintiffs and their cousin brothers in respect of land

admeasuring Ac.27.26 guntas forming part of Sy.Nos.47, 48, 67

and 64/1, 64/2, 64/3 of Pedda Amberpet Village and the same

fell to the share of the petitioners through registered partition

deed bearing document No.12460/1979, dated 06.12.1979,

however, they denied that the petitioners are in exclusive

4 (2008) 8 Supreme Court Cases 671 5 MGP,J CRP_1039_2019

possession and enjoyment of the respective share in all survey

numbers. Sy. No.67 consisting of Ac.1.17 guntas allotted to the

petitioners was converted into house sites and plots were sold in

favour of third parties. It is further contended that the

petitioners sold an extent of Ac.2.10 guntas and executed a GPA

and also an extent of Ac.2.20 guntas forming part of survey

Nos.47, 48, 64/1, 64/2, 64/3 and 67 in favour of Mahaboobee,

who sold the said plots in favour of third parties.

7. The suit is filed for perpetual injunction restraining the

defendants from interfering and encroaching the suit schedule

property i.e., land admeasuring Ac.1.17 guntas in Sy.No.67

situated at Peddamberpet Village, Abdullapurmet. The plaintiffs

can succeed in the suit if they are able to establish that they

were in possession of the suit schedule property as on the date

of filing of the suit. It is also an admitted fact that the

respondents/defendants are tracing their title from the revision

petitioners/plaintiffs. Admittedly status quo orders were passed

by the trial Court in respect of the suit schedule property. It is

the contention of the defendants that the interim application for

temporary injunction is posted for enquiry and to avoid hearing

in the said petition, the petition to appoint advocate

commissioner is filed to delay the proceedings. The plaintiffs 6 MGP,J CRP_1039_2019

admitted that the defendants are their neighbours on western

side of plaintiffs' property in respect of their open plot Nos.130,

131 and 142 consisting 300 square yards each in forming part

of 64/1, 64/2 and 64/3 and whereas the suit schedule property

is situated in Sy. No.67.

8. The only point to be considered is whether appointment of

advocate commissioner in a suit for perpetual injunction would

mount to collection of evidence. It is settled law that a court

appointed commissioner's report is only an opinion or noting

and are 'non-adjudicatory in nature'. It is settled a law that

appointment of advocate commissioner is a discretionary relief

of the Court. The power of appointment of Commissioner for

local investigation cannot be exercised by the Court to enable

any party to collect evidence through the Commissioner to prove

the factum of possession or enjoyment. In Sarala Jainv. Sangu

Gangadhar 5, the High Court for the erstwhile State of Andhra

Pradesh held as under:

"In any view of the matter, appointing advocate commissioner for demarcating schedule property and fix boundary stones to the land of the respondents is nothing but granting pre-trial decree in view of the law laid down by the Apex Court in Mohd. Mehtab Khan (1st supra), wherein the Apex Court held as follows:

"Given the ground realities of the situation, it is neither feasible nor practical to take the view that interim matters, even though they may be inextricably

5 2016(3) ALT 132 7 MGP,J CRP_1039_2019

connected with the merits of the main suit, should always be answered by maintaining a strict neutrality, namely, by a refusal to adjudicate. Such a stance by the Courts is neither feasible nor practicable. Court, therefore, will have to venture to decide interim matters on consideration of issues that are best left for adjudication in the full trial of the suit. In view of the inherent risk in performing such an exercise which is bound to become delicate in most cases the principles that the Courts must follow in this regard are required to be stated in some detail though it must be made clear that such principles cannot be entrapped within any strait-jacket formula or any precise laid down norms. Courts must endeavour to find out if interim relief can be granted on consideration of issues other than those involved in the main suit and also whether partial interim relief would satisfy the ends of justice till final disposal of the matter. The consequences of grant of injunction on the defendant if the plaintiff is to lose the suit along with the consequences on the plaintiff where injunction is refused but eventually the suit is decreed has to be carefully weighed and balanced by the Court in every given case. Interim reliefs which amount to pre-trial decrees must be avoided wherever possible."

If the principle laid down in the above judgment is applied to the present facts of the case, appointing advocate commissioner by the trial Court for the purpose of demarcating schedule property and fix boundary stones to the property of the respondents amounts to granting pre-trial decree as it satisfied part of the reliefs claimed in the suit. In such case, commissioner cannot be appointed for the said purpose."

9. Furthermore, the evidentiary value of any report of the

Commissioner is a matter to be tested in the suit and is open to

objections including cross-examination. It is always advisable

not to appoint an Advocate Commissioner, as in the present

case, to find out the possession of the property, which has to be

decided only from oral and documentary evidence to be adduced

by the parties. The trial Court in the impugned order has

rightly observed that under the guise of the petition, evidence 8 MGP,J CRP_1039_2019

cannot be collected by the petitioner because it is not the

dispute regarding the title and not the dispute regarding the

measurement of the land. The trial Court further observed that

the petitioners are at liberty to proceed in the suit instead of

dragging I.A.No.366 of 2017 by filing these type of petitions.

10. In Harchand v. Karambir Singh and another 6, the High

Court for the State of Punjab and Haryana, observed as under:

"In the present case the challenge is to the order dismissing the application for appointment of a Local Commissioner. A Division Bench of this Court in the case of Pritam Singh Vs. Sunder Lal [1990(2) PLR 191] inter-alia held as under:

"6. After going through the judgments cited in the reference order, we do not find that the earlier judgment in Harvinder Kaur's case (supra) requires any reconsideration. The order refusing to appoint a local commissioner does not decide any issue, nor adjudicates rights of the parties for the purpose of the suit and is, therefore, not revisable. The distinction sought to be made by the learned Single Judge in view of the Judgment in M/s Sadhu Ram Bali Ram's case (supra) was clearly noticed by the Division Bench in Harvinder Kaur's case (supra) and it was observed:

"It may be observed that the facts of M/s Sadhu Ram Bali Ram's case were different as in that case the onus of an issue had been wrongly placed and while deciding that question, it was held that such an order would be revisable."

Apart from that, placing the onus of an issue has something to do with the rights of the parties whereas refusing to appoint a Commission under Order 26, Rule 9, Code of Civil Procedure, has nothing to do with the rights of the parties as such. It is the discretion of the Court to appoint a Commission there under and if the Court refuses to appoint a Commission, then no right of any party can be said to be prejudiced as such."

Similar view has been taken by this Court in the case of Smt. Raksha Devi Vs. Madan Lal & Ors. [2017(3) PLR 249]

9 MGP,J CRP_1039_2019

wherein it has categorically been held that no revision would be maintainable against an order dismissing an application for appointment of a Local Commissioner. It is trite that an order refusing to appoint a Local Commissioner does not decide any issue nor does it adjudicate any rights of the parties for the purpose of the suit and hence would not be a revisable order.

11. In Naseeb Deen v. Harnek Singh 7, the High Court of

Himachalpradesh observed that the provision under Order XXVI

Rule 9 is not a tool which is to be permitted to be used by the

parties concerned to create evidence in their favour.

12. Furthermore, in M/s. Puri Investments v. M/s. Young

Friends And Company & others 8 the Apex Court observed as

under:

"13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Constitution of India. This is impermissible. The finding of the High Court that the appellate forum's decision was perverse and the manner in which such finding was arrived at was itself perverse."

13. In view of the above facts and circumstances and

considering the principle laid down in the above said decision,

this Court is of the considered opinion that the trial Court has

exercised its discretionary power in passing the impugned order

and moreover, the revision petitioners/plaintiffs failed to

establish that the impugned order passed by the trial Court

72019 SCC OnLine HP 1034 8Civil Appeal No. 1609 OF 2022 (arising out of SLP (C) No. 6516/2019) decided on 23.02.2022 10 MGP,J CRP_1039_2019

suffers from irregularity or infirmity. In such circumstances,

this Court cannot interfere with the findings of the trial Court

by exercising the power under Article 227 of the Constitution of

India. Therefore, the Civil Revision Petition is liable to be

dismissed.