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2006 DIGILAW 148 (AP)

Kshatri Amminibai v. Bedesi Suryanarayana Singh

2006-02-08

L.NARASIMHA REDDY

body2006
( 1 ) THE Petitionerfiled O. S. No. 749 of 1994 in hie Court of I Additional Junior Civil Judge, kakmada. for the relief of perpetual injunction, in respect of some items of suit schedule property, and mandatory injunction, as regards another item; against the respondents. The suit was dismissed on 15-03-2000. She filed A. S. No. 111 of 2002 in the Court of III Additional District Judge, kakinada. During the pendency of the appeal, she filed I. A. No. 2517 of 2004, under order 26 Rule 9 C. P. C. for appointment of an advocate Commissioner, to note down certain physical features. ( 2 ) ACCORDING to the petitioner, no Advocate commissioner was appointed during the pendency of the suit due to inadvertence, and thereby, an opportunity, to note the actual state of affairs, prevailing in the suit schedule property, was missed. She further pleaded that after dismissal of the suit, and during the pendency of the appeal, the respondents further encroached and made fresh constructions. She prayed for appointment of an Advocate Commissioner, with a view to apprise the appellate Court, of the actual state of affairs. ( 3 ) THE application was resisted by the respondents. They contended that in respect of the suit schedule property, they filed o. S. No. 229 of 1979, against the petitioner, and an Advocate Commissioner was appointed to submit a report, after due verification. It is stated that the report, in respect of the suit schedule property, obtained in O. S. No. 229 of 2979 was filed as Ex. B-4, in the present suit, and that the trial Court took the same into account, and in that view of the matter, the present application is misconceived. ( 4 ) THROUGH order dated 14-10-2004, the iii Additional District Judge, dismissed the i. A. Hence, this revision. ( 5 ) HEARD the learned counsel for the petitioner and learned counsel for the respondent. ( 6 ) FROM a perusal of the order under revision, as well as the relevant record, it is evident that the dispute between the petitioner and the respondents, dates back to, about quarter of a century. In relation to the same item of property, the respondents filed o. S. No. 229 of 1979 and on its dismissal, a S. No. 210 of 1981. The petitioner, in turn, tiled O. S. No. 749 of 1994. In relation to the same item of property, the respondents filed o. S. No. 229 of 1979 and on its dismissal, a S. No. 210 of 1981. The petitioner, in turn, tiled O. S. No. 749 of 1994. The suit was dismissed, and the present appeal is pending. ( 7 ) THE relief claimed by the petitioner in her suit is two-fold, viz. , perpetual and mandatory injuction. Learned counsel forthe petitioner mainly contended that, due to inadvertence, the petitioner did not get an advocate Commissioner appointed, to note down the physical features of the property, during the pendency of the suit, Basically, it is not necessary that in each and every suit, there must be a report of an Advocate commissioner. The necessity to appoint such advocate Commissioner would depend upon the facts and circumstances of the case. At any rate, as regards the suit schedule property itself, there existed a report, may be the one, called for in a different suit. That very report was filed as Ex. B-4 in the present suit. extensive discussion was indertaken by the trial Court. The lower appellante Court made specific reference to the grounds of appeal, touching on the report of the Advocate commissioner. The grounds can be amplified in the arguments, at the time of disposal of the appeal. ( 8 ) THE petitioner stated that during the pendency of the appeal, the respondents have resorted to further encroachment. Even if this contention istrue, it constltues a different cause of action, and cannot be dealt with in the present appeal. If the petitioner intends to get an adjudication, in relation to the alleged further encroachments, she has either to get the plaint in O. S. No. 749 of 1994 amended at the stage of appeal, if it is otherwise permissible in law, or to file a fresh suit. In eitherway, the application for appointment of an Advocate Commissioner to note down the further encroachments, cannot be entertained. This Court does not find any basis to interfere with the order under revision. Accordingly the C. R. P. is dismissed. ( 9 ) IT is made clear that, in case the petitioner intends to canvass her rights, as regards the alleged further encroachments, it shall be open to her, to file a fresh suit, in relation to the same. There shall be no order as to costs.