Telangana High Court

M/S.Sri Laxmi Venkateswara Oil Mills vs T.Krishna Prasad on 9 August, 2024

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

          CIVIL REVISION PETITION No.1361 of 2024

ORDER:

Aggrieved by the order dated 23.02.2024 in I.A.No.392 of

2023 in O.S.No.392 of 2023 (hereinafter will be referred as

'impugned order') passed by the learned Senior Civil Judge,

Nagarkurnool, the defendants have filed the present Civil Revision

Petition to set aside the impugned order.

2. The brief facts of the case are that the plaintiffs have filed

O.S.No.392 of 2023 on the file of learned Senior Civil Judge,

Nagarkurnool for recovery of possession and damages in respect of

the suit schedule property. Apart from the suit, the plaintiffs have

also filed I.A.No.392 of 2023 under Order XXVI Rule 9 of the Code

of Civil Procedure to appoint an Advocate Commissioner to survey

the land in Sy.Nos.153, 154, 156 with qualified Government

Surveyor to ascertain the extent of land and also the extent of land

occupied by the defendants illegally in the interest of justice. The

defendants have filed detailed counter opposing the said

application, however, the learned Senior Civil Judge has allowed

the said application on 23.02.2024. Aggrieved by the same, the

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defendants have preferred the present Civil Revision Petition to set

aside the impugned order.

3. Heard both sides and perused the record including the

grounds of revision.

4. As can be seen from the pleadings, the plaintiffs have filed

O.S.No.5/2011, which is renumbered as O.S.No.35 of 2023, for

recovery of possession and damages. It is the specific contention

of the plaintiffs that they along with their father and brothers

jointly sold property of Ac.3.06 guntas in Sy.No.150 and 152/A

situated at Vardyal Village, Kollapur to the defendant, who has

constructed an oil mill in the said land covered with compound

wall towards western side of the land purchased by him that

extended from South to North to the main road of Kollpur to

Pentlavelly. In the year 2003 a partition suit vide O.S.No.87 of

2003 on the file of learned Junior Civil Judge's Court, Kollapur

was filed by the plaintiffs and their second brother against the

father and elder brother and a third party for partition.

Subsequently a final decree was passed on 29.11.2005 in the said

suit, wherein plot B of plaint schedule (l) land was allotted to the

plaintiff and the said land was adjacent to the defendant's

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compound wall towards western side. In the month of July, 2008,

the plaintiffs visited Kollapur with an intention to sell part of the

joint family land that was not included in the partition suit, but he

witnessed that the defendant has constructed a weigh bridge

adjacent to the main road by encroaching 50 square yards land of

plaintiff in Sy.No.153. On enquiry, the defendant stated that

father of the plaintiffs has permitted him to construct such weigh

bridge and that he will settle the matter amicably and to

compensate the land encroached.

5. The plaintiffs have filed I.A.No.739 of 2014 seeking

appointment of an Advocate Commissioner for local investigation

to measure the land in dispute with the help of qualified surveyor,

however, the said petition was dismissed on 02.07.2015.

Aggrieved by the same, the plaintiffs have filed CRP No.4539 of

2015, which was allowed by setting aside the order dated

02.07.2015. It is alleged by the plaintiffs that after disposal of CRP

No.4539 of 2015, the defendant alleged to have occupied Ac.0.20

guntas apart from constructing a wall falling in sy.Nos.153, 154

and 166 without having any rights over the said land. It is

further alleged that the defendant occupied the

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graveyard/brundavanam of mother of the plaintiff in Sy.No.166

illegally.

6. It is the contention of the plaintiffs that Advocate

Commissioner was appointed as per the directions in CRP No.4539

of 2015 and the Commissioner has filed report, wherein the

Advocate Commissioner and Surveyor expressed their inability to

measure the land further occupied by the defendant as there were

no instructions from the Court in this regard. It is further

contended that the report submitted by the Advocate

Commissioner establishes illegal occupation of the plaintiffs' land

to an extent of 225 square yards in Sy.No.153 including the suit

schedule property of 50 square yards.

7. It is to be seen that the plaintiffs' initial contention was that

the defendant has occupied 50 square yards and subsequently the

defendant alleged to have encroached Ac.0.20 guntas by

constructing a wall. The overall land alleged to have been occupied

by the defendant is 225 square yards in Sy.No.153. Thus, the

plaintiffs have prayed for appointment of an Advocate

Commissioner to survey the land further occupied by the

defendant in Sy.Nos.153, 154 and 166.

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8. The main grievance of the defendants is that report

submitted private surveyor, report of Government Surveyor, dated

02.03.2010, survey report of the Advocate Commissioner dated

29.07.2017 vide I.A.No.739 of 2014 were not challenged and no

objections were filed by the plaintiffs, as such, again appointment

of another Advocate Commissioner does not arise.

9. As can be seen from the impugned order, the earlier private

survey report, which discloses that the defendant encroached 50

square yards in Sy.No.153, was made on the request of the

defendant. Further, on the application of the plaintiffs to the RDO,

Nagarkurnool, government official surveyors conducted survey in

the lands of plaintiffs and arrived to a conclusion that 50 square

yards in Sy.No.153 alleged to have been encroached.

10. It is to be seen that initial survey reports are pertaining to

the encroachment alleged to have been made by the defendant in

regard to 50 square yards of land in sy.No.153. The subsequent

survey sought to be conducted by the plaintiffs is in respect of 0.20

guntas, which was alleged to have been encroached by the

defendant in Sy.No.153, 154 and 166 and this land is abutting to

the land of the defendant in sy.No.150 and 152/A. There is no

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dispute that the plaintiffs and their family members jointly sold

property of Ac.3.06 guntas in Sy.Nos.150 and 152/A situated at

Vardyal Village, Kollapur to the defendant. As of now, there is no

record to show that the plaintiffs have alienated the part of their

lands in Sy.Nos.153, 154 and 166 to the defendant. It is not the

case of the plaintiffs that the defendant alleged to have encroached

their land at once. Prior to filing of the suit, the defendant alleged

to have encroached 50 square yards in Sy.No.153 only and

thereafter during the pendency of the suit, the defendant alleged to

have encroached 0.20 guntas of land in Sy.Nos.153, 154 and 166.

Perhaps that is the reasons as to why the suit was amended for the

relief of eviction of defendant and recovery of possession of 0.20

guntas in Sy.Nos.153, 154 and 166. It is not the case of the

defendant that the lands in Sy.Nos.154 and 166 were already

surveyed either at the request of plaintiffs or at the request of

defendant prior to passing of the impugned order.

11. In this regard, the learned counsel for the defendant relied

upon a decision in Seepally Thirupathi and others v. Repelli

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Mallikarjun and another 1 wherein it was observed by the High

Court for the erstwhile State of Andhra Pradesh observed as under:

"10. It is pertinent to note that merely because scientific enquiry had been referred to, it cannot be said that under the guise of those provisions, when already a report of Commissioner is available on record, the learned Judge without recording any reasons, expressing either the deficiency or otherwise relating to the said report, cannot appoint yet another Commissioner. Hence, in this view of the matter, the learned Judge had not committed any illegality whatsoever in dismissing the application."

12. Learned counsel for the defendant further relied upon a

decision in Pasunuri Satyanarayana v. Md. Waheed and others 2

wherein this Court observed that it is only when the report of the

first Commissioner is unsatisfactory and the Court is dissatisfied

with his proceedings, that a second Commissioner could be

appointed under the provisions of Order XXVI Rule 10 sub-clause

(3).

13. There is absolutely no doubt with regard to the principle laid

down in the above said decisions that when already a report of

Commissioner is available on record, there is no necessity of

appointing another Advocate Commissioner again for re-survey of

the same land, however, when commissioner report is not

1 2006 (4) ALT 23 (S.B.) 2 2023 (6) ALD 6 (TS)

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satisfactory, another Advocate Commissioner may be appointed.

But in the present case, the encroachment alleged to have been

made by the defendant is for more than an occasion i.e., prior to

filing of the suit and during the pendency of the suit. Moreover, the

land alleged to have encroached by the defendant also falls in

different survey numbers when compared with alleged land

encroached as per the contention of the plaintiffs. Hence, the

principle laid down in the above said decisions cannot be made

applicable to the facts of the present case.

14. On the other hand the learned counsel for the plaintiffs

relied upon a decision in C. Veeranna v. C. Venkatachalam 3

wherein the High Court for the erstwhile State of Andhra Pradesh

observed that it is open to the Court to issue an exparte

commission if it deems that a local investigation is requisite for the

purpose of the suit. The learned counsel for the plaintiffs further

relied upon a decision in Haryana Waqf Board v. Shanti Sarup

and others 4 wherein the Honourable Supreme Court observed that

it is appropriate for the Court to direct the investigation by

appointing a Local Commissioner under Order 26 Rule of the Code

3 1958 (1) ALT 792 (D.B.) 4 2008 (8) SCC 671

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of Civil Procedure in case of demarcation of the disputed land. In

Smt. P. Sreedevi v. IVLN Venkata Lakshmi Narasimha Prasad 5

this Court observed that when there is a dispute of localization or

demarcation of property, the best course of action is to appoint an

Advocate Commissioner/Surveyor for localization. Further, in

Jajula Koteshwar Rao v. Ravulapalli Masthan Rao, 6 the

erstwhile High Court of Judicature for the State of Telangana and

the State of Andhra Pradesh held as under:

"The object of the local investigation under Order XXVI Rule 9 CPC is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but can be taken only from the peculiar nature, on the spot. The Commissioner in effect is a projection of the Court appointed for a particular purpose. The law of evidence enjoins upon a party to prove the fact which he relies on and in that sense, an obligation is cast upon the party; and if he fails to discharge that obligation, adverse consequence will follow and he will have to face the repercussions of the same. This right of the party to adduce evidence gets adjudicated in the interlocutory proceedings under order XXVI Rule 9 CPC."

15. In Bandaru Mutyalu and another v. Palli Appalaraju 7 the

High Court for the erstwhile State of Andhra Pradesh opined that

Advocate Commissioner may be appointed to localize the disputed

land with the assistance of qualified surveyor but not to determine

the possession of any party.

5 2020 (4) ALT 433 (D.B.) 6 2015 (6) ALD 483 7 2013 (4) Civ CC 721

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16. The other contention of the defendants is that the plaintiffs

are going on alleging that the defendant has encroached their

lands without any documentary evidence and to substantiate those

allegations filing petitions to appoint Advocate Commissioner and

get their lands surveyed, which is not permissible as it amounts to

collection of evidence on behalf of the plaintiffs.

17. It is to be seen that Section 75 of the Code of Civil Procedure

deals with appointment of Advocate-Commissioner and envisages

that a Commissioner can be appointed to aid the Court and as

such, a Commissioner may be appointed to examine any person, to

make local investigation, to examine or adjust accounts, to make a

partition, to hold a scientific or technical or expert investigation, to

conduct sale of property, in the circumstances mentioned therein

or to perform a ministerial act. Along with the said provision, the

relevant provision is Order XXVI Rule 9 of the Code of Civil

Procedure. Having regard to the provision under Order XXVI Rule

9 of the Code of Civil Procedure, this Court is of the considered

view that the learned Judge of the trial Court erred in concluding

that only for the purpose of collection of evidence, the defendants

have moved an application for appointment of an Advocate-

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Commissioner. The trial Court ought to have observed that noting

down the physical features that exists at the disputed property

themselves does not change the circumstances present therein and

the Advocate-Commissioner's report would always aid the Court in

coming at a just conclusion with regard to the presence of a

situation that exists at the disputed suit property.

18. Admittedly, nothing present therein can be changed either

through physical verification of the Advocate-Commissioner or by

his report. The point that has to be observed here is that any

Advocate-Commissioner appointed by any Court of law would

execute warrant issued for noting down the physical features of the

disputed property, only after issuance of notice to both the parties

fixing the date and time of inspection. The Advocate -

Commissioner would inspect the disputed property at all times in

the presence of the parties to the suit or their authorized

representatives including their counsel except in cases, where such

parties themselves restrain from making their presence in spite of

issuance of notice. Also, law provides and enables the parties to

the proceedings to file objections to the Commissioner's report

after it is presented to the Court of law on execution of warrant.

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Further, the report that is going to be filed by the Advocate

Commissioner can be subjected to cross examination also during

the course of trial. Such being the case, it cannot be held that only

for the purpose of collection of evidence, the plaintiffs have moved

application for appointment of Advocate-Commissioner.

19. Learned counsel for the defendant relied upon a decision in

Balamani and others v. State of Andhra Pradesh and others 8,

wherein this Court observed that appointment of Advocate

Commissioner at the instance of defendants in the original suit for

perpetual injunction is a factual boundaries and no useful purpose

will be served. However, in M.P. Rajya Tilhan Utpadak Sahakari

Sangh Maryadit, Pachama, District Sehore and Others v. M/s.

Modi Transport Service 9 the Honourable Apex Court observed as

under:

"33. Order XXVI Rule 9 of the Code gives wide powers to the court to appoint a commissioner to make local investigations which may be requisite or proper for elucidating any matter in dispute, ascertaining the market value of any property, account of mesne profit or damages or annual net profits. Under Order XXVI Rule 11, the court has the power to issue a commission in a suit, in which examination of adjustment of accounts is necessary, to a person as it thinks fit directing him to make such examination or adjustment. When a court issues such a commission to such a person, it can direct the commissioner to make such an investigation, examination and adjustment and submit a report thereon to the court. The commissioner so appointed does not strictly perform a 'judicial act which is binding'

8 2023 (2) ALD 887 (TS) 9 2022 Live Law (SC) 471

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but only a 'ministerial act'. Nothing is left to the commissioner's discretion, and there is no occasion to use his judgment or permitting the commissioner to adjudicate and decide the issue involved; the commissioner's report is only an opinion or noting, as the case may be with the details and/or statement to the court the actual state of affairs. Such a report does not automatically form part of the court's opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. Hence, there is neither abdication nor delegation of the powers of functions of the court to decide the issue. Sometimes, on examination of the commissioner, the report forms part of the record and evidence. The parties can contest an expert opinion/commissioner's report, and the court, after hearing objections, can determine whether or not it should rely upon such an expert opinion/commissioner's report. Even if the court relies upon the same, it will merely aid and not bind the court. In strict sense, the commissioners' reports are 'non-adjudicatory in nature', and the courts adjudicate upon the rights of the parties"

20. In Mohammed Jaffer Abdul Qadeer Qureshi v. Aziz-Ur-

Rehman Qureshi and Others 10 wherein the High Court of

Judicature for the State of Telangana and the State of Andhra

Pradesh held as under:

"Dealing next with the contentions that a Commissioner cannot be appointed for gathering evidence and that the existence or otherwise of a road, which is borne out by the Hiba and the surveyors report, can be proved by adducing oral evidence by both the sides and that, therefore, the commissioner cannot be appointed, what is to be noted is that the law is well settled that for noting down physical features a Commissioner can be appointed. The existence or otherwise of a road, which is being described as C schedule property, is a physical feature is not in dispute. Therefore, this contention has no substance.

Dealing lastly, with the contention that the report of the Commissioner is not going to serve any purpose, be it noted that issuance of Commissions is dealt with in Section 75 of the Code, which deals with 'Incidental Proceedings'; whereas the other interlocutory proceedings like grant of temporary injunctions and appointment of Receivers etcetera are dealt with in Section 94 of the Code which deals with 'Supplemental Proceedings'. Supplemental proceedings are separate proceedings in a Original

10 2016 (3) ALD 38

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action, in which the Court is called upon to exercise jurisdiction in aid of the judgment in action. Incidental Orders are being necessary complements in the main order without which the matter would be incomplete or ineffective. [vide M.A. Mohammed Ali v. R. Ramadoss, AIR -1966 1 Mad. 441]. Thus, incidental orders are complementary in nature and are intended to assist the Court in arriving at a just decision in the case and is unlike supplemental orders. The request for appointment of a Commissioner for noting down the physical features of a property, in the well considered view of this Court, by no stretch of imagination can be called as an attempt to gather evidence."

21. Thus, it is clear that the report filed by an Advocate

Commissioner is non-adjudicatory in nature and the Courts are

not bound by such report and such report will only aid/assist the

Court in arriving at an appropriate conclusion. Hence, by

considering the principle laid down in the above said decision it is

clear that the exercise of appointment of an Advocate

Commissioner cannot be termed as collection/gathering of

evidence by any stretch of imagination.

22. The learned Senior Civil Judge after considering the rival

contentions, pleadings adduced on behalf of both the sides and

also the decisions relied upon by both the parties, has passed a

well reasoned order, which do not need any interference of this