Telangana High Court
Sri.Mohammed Iqbal vs Bochu Ameer on 23 August, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL REVISION PETITION No.1618 of 2024
ORDER:
Aggrieved by the order dated 04.12.2023 in I.A.No.396 of
2023 in O.S.No.59 of 2023 (hereinafter will be referred as
'impugned order') passed by the learned Junior Civil Judge,
Kalwakurthy, the defendant filed the present Civil Revision Petition
to set aside the impugned order.
2. The brief facts of the case are that the plaintiff filed
O.S.No.59 of 2023 before the learned Junior Civil Judge,
Kalwakurthy for declaration of title, recovery of possession and
perpetual injunction in respect of the suit schedule property.
Apart from the suit, the plaintiff also filed I.A.No.396 of 2023
under Order XXVI Rule 9 of the Code of Civil Procedure to appoint
an Advocate Commissioner for local inspection, conducting survey,
demarcation and measuring the lands in Sy.No.395/EE and
360/AA of Marchala Village, Kalwakurthy Mandal, Nagarkurnool
owned and possessed the by both the parties respectively with
reference to their title deeds. The defendant filed detailed counter
opposing the said application, however, the learned Junior Civil
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Judge allowed the said application on 04.12.2023. Aggrieved by
the same, the defendant has 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 seen from the record, after receipt of summons, the
defendant filed written statement along with counter claim,
wherein he disputed the identity and location of the suit schedule
land. The claim of the defendant is that he is the owner and
possessor of land admeasuring Ac.01.31 guntas in Sy.No.360/AA
with specific boundaries in Marchala Village, Kalwakurthy Mandal,
Nagar Kurnool District having purchased the same from Dokka
Balamaisaiah in the year 2013 and that he is intending to
construct holy shrine in his land. It is the specific contention of
the plaintiff that he has been fighting for his land in sy.No.395/EE
for the past five years by approaching several authorities and
courts but the defendant is making illegal construction in the
name of a Dargah in the suit schedule property stating to the be
land purchased by him vide document No.10607/2013 dated
09.10.2013, however, in fact the said property belongs to the
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plaintiff. The defendant admitted in his counter that the plaintiff is
the owner of land admeasuring Ac.1.14 guntas in Sy.No.395/EE of
Marcharla Village but he is denying that plaintiff is the owner of
the suit schedule property.
5. As seen from the rival contentions, it appears that though
the lands of respective parties are in separate survey numbers i.e.,
395/EE and 360/AA, both the parties are claiming the same
property. Thus, there is a dispute with regard to identification of
the property. The trial Court has acceded to the request of the
plaintiff to appoint advocate commissioner only on the ground that
the Court is expected to consider all the evidence on record, before
it finally decides the suit. From the above observation, an
inference can be drawn that the trial Court is of the view that
Advocate Commissioner report forms part of the evidence.
6. It is to be seen that though report of Advocate-Commissioner
forms part of the records, it is not binding on Court and in
fact advocate commissioner report is to be appreciated along with
other evidence available on record in a given case. In M.P. Rajya
Tilhan Utpadak Sahakari Sangh Maryadit, Pachama, District
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Sehore and Others v. M/s. Modi Transport Service 1 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'
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"
7. In Mohammed Jaffer Abdul Qadeer Qureshi v. Aziz-Ur-
Rehman Qureshi and Others 2 the High Court of Judicature for
the State of Telangana and the State of Andhra Pradesh held as
under:
1 2022 Live Law (SC) 471
2 2016 (3) ALD 38
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"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
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."
8. 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, this
Court is of the opinion that the trial Court erred in considering the
advocate commissioner report as evidence. It is clear that the
exercise of appointment of an Advocate Commissioner cannot be
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termed as collection/gathering of evidence by any stretch of
imagination.
9. It is the contention of the learned counsel for the defendant
that the trial Court erred in observation that the respondent
gathering the evidence by way of Advocate Commissioner's report
without filing any proof, except his gift deed executed by his
mother. It is further contended that the trial Court erred that the
present application is filed in earlier stage, even though court will
permit at the stage of trial only. However, on a careful perusal of
entire impugned order, there are no such observations made by
the trial Court in the impugned order as contended by the learned
counsel for the defendant.
10. Now coming to the aspect as to whether an Advocate
Commissioner can be appointed or not in the present case, it is
evident that there is a dispute between the parties with regard to
identification of the property. Learned counsel for the defendant
relied upon a decision in A. Gopal Reddy v. R. Subramanyam
Reddy 3 wherein the High Court for the erstwhile State of Andhra
Pradesh observed that the appointment of a Commissioner that too
3 2013 (4) ALD 347
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for noting the physical features before commencement of trial is a
pure step aimed at gathering of evidence. In Badana Mutyalu and
another v. Palli Appalaraju 4 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.
11. It is further contention of the learned counsel for the
defendant that the trial Court ought to have seen that two property
schedules and boundaries are different as per their respective
pleadings and documents of the petitioner and respondent. It is to
be seen that only when there is a dispute with regard to boundary,
the probability of appointing an advocate commissioner would
arise. In the case on hand, the defendant is admitting that the
plaintiff is the owner of land admeasuring Ac.1.14 guntas in
Sy.No.395/EE of Marcharla Village but no the suit schedule
property. Thus, the necessity of appointing an Advocate
Commissioner arose to clear the dispute with regard to the suit
schedule property. Once an Advocate Commissioner is appointed
the ambiguity with regard to the boundaries of suit schedule
4 2013 (4) Civ CC 721
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property would be cleared. It would also give clarity as to whether
the suit schedule property and the property as claimed by the
plaintiff are one and the same or not.
12. The learned counsel for the defendant contended that the
trial Court erred in the provision of order XXVI Rule 9 of the Code
of Civil Procedure with regard to the same cause of action in
respect of the same relief. When already a survey report is
available, there is no necessity of appointing another Advocate
Commissioner again for re-survey of the same land, however, when
survey report is not satisfactory, an Advocate Commissioner may
be appointed. As can be seen from the averments of the counter
filed by the defendant, on the application of plaintiff, a survey was
conducted on 27.09.2019 by observing that Dargah is situated in
sy.No.395. The defendant in his counter contended that in the
earlier report/panchanama, the names of neighbouring land owner
and their presence were not revealed. Even as per the contention of
the defendant, when the defendant disputed the said
report/panchanama, its validity and genuineness, the plaintiff has
come up with a plea to appoint Advocate Commissioner. In the
present case, the earlier panchanama/survey was conducted in
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the year 2019 i.e., much prior to filing of O.S.No.59 of 2023. The
cause of action for the plaintiff to file O.S.No.59 of 2023 is
pertaining to the year 2023. Thus, there is a scope of changes
taking place in regard to suit schedule property and the
surrounding areas during this span of four years. Since the
panchanama/survey was conducted much earlier to filing of
O.S.No.59 of 2023 and since the cause of action is pertaining to
the year 2023 and since the defendant is also not satisfied with the
earlier report/panchanama, there is no bar for the plaintiff to seek
appointment of an Advocate Commissioner to conduct survey,
demarcation and measurement of lands of the parties in
Sy.No.395/EE and 360/AA.
13. In Haryana Waqf Board v. Shanti Sarup and others 5 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 of Civil Procedure
in case of demarcation of the disputed land. In Smt. P. Sreedevi
v. IVLN Venkata Lakshmi Narasimha Prasad 6 this Court
observed that when there is a dispute of localization or
5 2008 (8) SCC 671
6 2020 (4) ALT 433 (D.B.)
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demarcation of property, the best course of action is to appoint an
Advocate Commissioner/Surveyor for localization.
14. 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. Having
regard to the provision under Order XXVI Rule 9 of the Code of
Civil Procedure, it cannot be always opined that advocate
commissioner is appointed only for the purpose of collection of
evidence. 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. Further, law enables the parties to the
proceedings to file objections to the Commissioner's report after it
is submitted to the Court of law on execution of warrant. Further,
the report that is going to be filed by the Advocate Commissioner
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can be subjected to cross examination during the course of trial.
Such being the case, it cannot be held that only for the purpose of
collection of evidence, the plaintiff moved application for
appointment of Advocate-Commissioner.
15. The grounds urged by the defendant in this Civil Revision
Petition are not satisfactory and the learned Junior Civil Judge
after considering the rival contentions, passed an order, which do
not need any interference of this Court by invoking Article 227 of
the Constitution of India, more particularly when the impugned
order does not suffer from any irregularity or illegality. Thus,
there are no merits in this Civil Revision Petition, which is devoid
of merits and thereby the same is liable to be dismissed.
16. Accordingly, the Civil Revision Petition is dismissed. There
shall be no order as to costs.
As a sequel, all the pending miscellaneous applications shall
stand closed.
_____________________________
JUSTICE M.G.PRIYADARSINI
Date: 23.08.2024
AS
