Telangana High Court
Sri Krishna Kumar V Shah vs Sri.T.Shanker Singh on 16 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITON No.2567 of 2022
ORDER:
This Civil Revision Petition is filed aggrieved by order dated
21.09.2022 passed by XI Additional Chief Judge, City Civil Court,
Hyderabad in I.A.No.173 of 2020 in O.S.No.109 of 2018.
2. The aforesaid application was filed under Order XXVI
Rule 9 of CPC seeking to appoint an Advocate-Commissioner to
note down the physical features of the suit schedule property. By
the impugned order, the trial Court allowed the said application and
appointed one Smt T.P.Shailaja Reddy, Advocate, as Advocate-
Commissioner.
3. Heard Ms Pratusha Boppana, learned counsel for the
petitioners, and Sri Damodar Reddy, learned senior counsel
representing Sri C.Ruthwik Reddy, learned counsel on record for
the respondents. Perused the entire material available on record.
4. The main contentions raised by the learned counsel for the
petitioners is that when a party contends that he/she is in
possession of property, the burden is on the said party to prove
their possession, but, the trial Court failed to appreciate the said
well-settled principle and appointed an Advocate-Commissioner
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for noting down the physical features of the suit schedule property
as the same amounts to collection and gathering of evidence.
Hence, he prayed to set aside the impugned order.
5. Learned counsel for the petitioners relied upon the judgment
of this Court in B.Janardhan Reddy Vs. Shantha Bai 1, the
judgment of the High Court of Andhra Pradesh at Amaravathi in
Selvaraju Dhanasekhar Vs. Viswanadha Venkata Yegneswara
Sastry and others 2 and the judgments of the erstwhile High Court
of Andhra Pradesh in A.Gopal Reddy Vs. R.Subramanyam Reddy
and another 3, Yenugonda Bal Reddy Vs. Manemma and others 4
and the judgments of the High Court of Madras in
Selvamariammal Vs. Kanagavel 5, Chandrasekaran and others
Vs. V.Doss Naidu 6 and K.M.A.Wahab and others Vs. Eswaran
and another 7 and the judgment of the combined High Court for the
States of Telangana and Andhra Pradesh in Bandi Samuel and
others Vs. Medida Nageswara Rao 8.
2020 SCC Online TS 1605
MANU/AP/0068/2019
2013 SCC Online AP 726
2010 SCC Online AP 842
2018 SCC Online Mad 7587
MANU/TN/0762/2005
2008(3) CTC 597
MANU/AP/0896/2016
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6. Per contra, learned counsel for the respondents contended
that no prejudice is caused to the petitioners by appointing
Advocate-Commissioner and it is only for noting down the
physical features of the suit schedule property and therefore, the
present Revision is devoid of merits and is liable to be dismissed.
7. Learned counsel for the respondents relied upon the
judgment of this Court in Nalla Wilson and another Vs. Beldi
Rani and another 9, judgment of combined High Court for the
States of Telangana and Andhra Pradesh in K.Dayanand and
another Vs. P.Sampath Kumar 10 and the judgment of High Court
of Chhattisgarh in Phoolchand Asra Vs. Nagar Palika Nigam
Raipur, Zone Commissioner 11.
8. This Court gave its earnest consideration to the rival
submissions made by learned counsel for both the parties. Perused
the entire material available on record and citations relied upon by
the learned counsel appearing for both the parties.
9. Absolutely, there is no quarrel with regard to the proposition
laid down by various High Courts in the judgments cited by the
learned counsel for the revision petitioners that Advocate-
2022 SCC Online TS 3362
2015(2) ALD 319
2022 LawSuit(Chh) 1016
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Commissioner cannot be appointed for collection of evidence and
also for making enquiry about the factum of possession of the
property in dispute, and it is for the party to prove its possession by
adducing oral and documentary evidence.
10. The present suit is filed for specific performance of
agreement of sale and permanent injunction and there is a serious
dispute with regard to the nature of the suit schedule property. The
trial Court appointed the Advocate-Commissioner to note down the
physical features of the suit schedule property and to file her
report. The report of the Advocate-Commissioner, in fact, clears
the ambiguity as regards the nature of the suit schedule property
and the same does not amount to collection of evidence.
11. The burden of proof of possession is on the party who
pleads the same. The report of the Advocate-Commissioner is not
to ascertain as to who among the parties to the suit is in possession
of the suit schedule property. If the Advocate-Commissioner makes
a local inspection and notes down the physical features of the suit
schedule property and file his/her report, the same aids the trial
Court for better appreciation of the evidence that may be let in by
the parties during the course of trial.
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12. Initially, the view of various High Courts was that an
Advocate-Commissioner can be appointed only after adducing the
evidence and for clarification of any ambiguity or when there is a
necessity to answer a particular issue. However, of late, the
Hon'ble Apex Court and various High Courts have taken a view
that Advocate-Commissioner can be appointed even in a suit filed
for injunction and it is better to appoint an Advocate-
Commissioner even before adducing evidence so that the parties
can lead evidence accordingly.
13. In K.Dayanand's case (cited supra), the combined High
Court of Andhra Pradesh at para 24 of the judgment referred to the
judgment of the Hon'ble Apex Court in Haryana Waqf Board and
others v. Shanti Sarup and others 12, wherein it was held that the
Commissioner can be appointed in injunction suits also. Also,
reference was made to various judgments of this Court, wherein it
was held 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.
2008 AIR SCW 6500
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14. In ECE Industries Limited (I) Vs. S.P. Real Estate
Developers (P) Ltd 13, the Hon'ble Apex Court appointed
Advocate-Commissioner to verify the actual position of the subject
property by observing at para 9 as under:-
After hearing the learned counsel for the parties and
after going through the Commissioner's report, we are of
the prima facie view that before deciding this special leave
petition finally on merits, it would be proper in order to do
complete justice to find out the actual position of the suit
property i.e:
(i) Whether constructions have been made on the different
blocks of the suit property and how many blocks are still
remaining vacant?
(ii) If constructions have been made, what is the nature and
extent of such constructions?
(iii) Whether such constructions can be said to be
substantial constructions or not.
(iv) Whether constructions have been completed in some
blocks of the suit property and the flats constructed in such
blocks are ready for use and occupation.
(v) Also to see the local features.
To find out the aforesaid, we appoint Shri Ram
Krishna Prasad, a learned advocate of this Court, who will
visit the suit property in course of this week by giving prior
notice to both the sides and submit a report on the
abovementioned items by next Monday i.e., on 27-7-2009."
(2009) 12 SCC 773
LNA, J
15. The erstwhile High Court of Andhra Pradesh in Shaik
Zareena Kasam Vs. Patan Sada Khan and others 14 at para 10 held
as under:-
"Whenever there is a dispute regarding boundaries or
physical features of the property or any allegation of
encroachment as narrated by one party and disputed by
another party, the facts have to be physically verified,
because, the recitals of the documents may not reveal the
true facts and measuring of land on the spot by a Surveyor
may become necessary."
16. Further, a Division Bench of the erstwhile High Court of
Andhra Pradesh in C.Veeranna Vs. Venkatachalam 15, held as
hereunder:-
"The question as to when a Commissioner could be
appointed should be within the wide discretion of the trial
Court, but it cannot be said that no Commissioner could be
appointed before the issues are framed or the evidence is
led....."
17. Thus, in the light of the aforesaid judgments, the law is
well settled that there is no specific bar for appointment of
Advocate-Commissioner before commencement of trial or framing
of issues.
2011 SCC OnLine AP 218
AIR 1959 AP 170
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18. In the instant case, the suit is filed for specific performance
of agreement of sale dated 24.03.2006 and also for permanent
injunction. Thus, the suit was filed after a lapse of about 12 years
from the date of execution of agreement of sale in respect of
agricultural land admeasuring Acs.15.39 guntas situated in
Ramsinghpura, Gudimalkapur Village, Asifnagar Mandal,
Hyderabad.
19. On the other hand, defendant Nos.6 to 8 have taken
specific stand that the suit schedule land is not an agricultural land
and it has been developed over a period of time and at present, it
consists of marriage halls, business establishments, etc., but the
said fact was suppressed by the plaintiff and obtained ex parte
injunction in its favour.
20. If there is serious dispute with regard to the nature of the
subject land, it is appropriate to appoint an Advocate-
Commissioner to note down the physical features of the subject
land, which will aid the trial Court for proper adjudication of the
matter.
21. In the impugned order, the trial Court has recorded valid
reasons for appointment of Advocate-Commissioner, which is in
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accordance with the ratio laid down by various High Courts and
Hon'ble Supreme Court time and again that appointment of
Advocate-Commissioner for noting down the physical features of
the properties does not amount to gathering evidence on behalf of
either of the parties.
22. Therefore, in the light of the above legal position and in
the given facts, circumstances of the case, this Court is of the
considered view that the impugned order passed by the trial Court
does suffer from any fundamental infirmity which warrants
interference by this Court.
23. Accordingly, this Civil Revision Petition is dismissed.
There shall be no order as to costs.
24. Pending miscellaneous applications, if any, shall stand
closed.
__________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Date:16.04.2024
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