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2008 DIGILAW 1075 (AP)

Salla Eswaramma v. C. Subba Reddy

2008-12-19

V.ESWARAIAH

body2008
ORDER: The petitioner is the plaintiff who filed the suit O.S.No.288 of 2004 on the file of the Additional Senior Civil Judge, Chittoor for grant of permanent injunction restraining the respondent herein from interfering with her possession and enjoyment of the suit schedule property situated in Sy.No.246/1 of Irala village and Mandal, Chittoor District in an extent of Ac.0-07 cents out of Ac.1-54 cents with well and bore well therein with 5 HP Motor and pump set connected to the Service Connection No.438 within the specified boundaries. The said suit was originally filed in the Court of II-Additional Senior Civil Judge, Chittoor, thereafter, it was transferred to the Court of Additional Senior Civil Judge, Chittoor. It is stated that the respondent/defendant in the said suit also filed O.S.No.94 of 2004 on the file of the Additional Senior Civil Judge, Chilttoor against the petitioner herein and one Cheekala Kannaiah Reddy for grant of permanent injunction, restraining the defendants therein i.e., the petitioner herein and Cheekala Kannayya Reddy from interfering with his peaceful possession and enjoyment in respect of Ac.1-13 cents out of the total extent of Ac.1-54 cents in Sy.No.246/1, but the name of the village is mentioned as Reddivaripalle village, Irala Mandal, Chittoor District together with two wells and four bore wells connected with service connection Nos.50 and 1359 and two Texmo Mono Block Motors. It is stated that pending disposal of the suit, the trial Court granted interim injunction in I.A.No.788 of 2004 restraining the respondent herein from interfering with the peaceful possession and enjoyment of the same, but in spite of the said order, in the month of April, 2004, the respondent high handedly ploughed the five links width of foot path and also raised sugarcane crop in a portion of Ac.0- 07 cents of the suit land around the well shown therein, therefore, the petitioner filed I.A.No.836 of 2006 for appointment of an Advocate Commissioner to note down the physical features of the suit schedule property i.e., the sugarcane crop raised in the suit schedule property i.e., the foot path shown as KHLM in the rough sketch and also in a portion of Ac.0-07 cents of the suit land around W2 well and also to measure the suit land demarcating five links width of foot path shown as KHLM in the rough sketch and also Ac.0-07 cents of land around W2 well which is shown as JIHD in the rough sketch and also to measure Ac.1-13 cents of land claimed by the respondent/defendant in the suit and plaintiff in O.S.No.94 of 2004, with the help of the Mandal Surveyor and to file his report with rough sketch and survey sketch. Opposing the said application, a counter has been filed, denying the allegations about the ploughing of the suit land high handedly and submitted that Advocate-Commissioner was already appointed in respect of the same subject matter in O.S.No.94 of 2004 and the Advocate-Commissioner filed his report in the said suit, therefore appointment of Advocate Commissioner again will lead to multiplicity of proceedings with two conflicting reports in respect of the same subject matter between the same parties. The Court below considered the rival contentions and held that the present application has been filed not only to note down the physical features of the suit schedule property, but also demarcate five links width of footpath shown as KHLM in the rough sketch and also Ac.0-07 cents of the land around W2 well, which is shown as JIHD in the rough sketch and also to measure Ac.1-13 cents of the land claimed by the respondent/defendant in the present suit and plaintiff in another suit, with the help of Mandal Surveyor and to file his report with rough sketches and survey sketch. The main suit is filed for grant of permanent injunction and in a suit filed for grant of permanent injunction, the burden is only on the parties to establish their respective possession independently and no Advocate Commissioner shall be appointed to note down the possession aspect over the schedule property. Further, when the suit is filed for grant of permanent injunction, appointing an Advocate Commissioner to measure and demarcate the lands as required by the petitioner with the help of the Mandal Surveyor is far fetching relief and it is not within the proximate ambit of the main suit. Accordingly, the said application has been dismissed, rejecting the appointment of Advocate Commissioner. Aggrieved by the same, the petitioner/plaintiff filed the present Civil Revision Petition under Article 227 of the Constitution of India, contending that the order of the Court below is illegal and erroneous in holding that in a suit for grant of permanent injunction, no Advocate Commissioner can be appointed. It is stated that the Advocate Commissioner also can be appointed in a suit for injunction to note down the physical features. It is further stated that the Advocate Commissioner appointed earlier in the suit filed by the respondent is with reference to the suit schedule property therein, but not with reference to the suit schedule property in the instant case and therefore, the report is required to resolve the controversy in the present suit. It is further stated that to resolve the controversy, as the suit schedule property in the instant case is different and small extent, the report of the Advocate-Commissioner is required. It is stated that there will not be any conflict of the reports as the present application filed for the report of the Advocate-Commissioner is different and distinct as the suit schedule properties with regard to the extent, boundaries etc., are different and distinct and when the controversy is with regard to Ac.0-07 cents only in the suit, but whereas the defendant claiming large extent of Ac.1-13 cents, the report is required. On the other hand, the learned counsel appearing for the respondent submits that in a suit for injunction no Advocate Commissioner can be appointed and it is for the plaintiff to establish her possession over the suit schedule property and therefore, under the guise of appointment of Advocate Commissioner, there cannot be any gathering of material evidence. On the other hand, the learned counsel appearing for the respondent submits that in a suit for injunction no Advocate Commissioner can be appointed and it is for the plaintiff to establish her possession over the suit schedule property and therefore, under the guise of appointment of Advocate Commissioner, there cannot be any gathering of material evidence. In support of his contentions, he relied on a Judgment of this Court in the case of Koduru Sesha Reddy Vs.Gottigundala Venkata Rami Reddy and others1. I have perused the said Judgment. The facts of the said Judgment goes to show that the suit was also filed by the plaintiff therein for grant of perpetual injunction and along with the said suit itself, two applications have been filed, one is for grant of temporary injunction and another is for appointment of Advocate-commissioner and both the applications were ordered exparte and the Advocate-Commissioner filed a report noting down the physical features. Thereafter, the respondent/defendant therein filed an application for appointment of another Advocate Commissioner, contending that without issuing any notice, the Advocate-Commissioner was appointed and the Advocate Commissioner also filed a report without giving any opportunity to the defendant and therefore, it is just and proper to appoint another Advocate commissioner. It was the contention of the plaintiff therein that unless the first Advocate Commissioner report is set- aside, the question of appointing second Advocate-Commissioner does not arise. Obviously, my learned Brother Hon'ble Sri Justice L.Narasimha Reddy expressed dis-satisfaction, the way in which exparte Advocate-Commissioner was appointed and submitting the report and it was held that it is for the plaintiff to prove that he is in possession of the suit schedule property as on the date of filing of the suit and the necessity to appoint Commissioner would arise, only if the evidence which is already on record leaves something to be explained further and the Court feels that the best way to go nearer the truth of the matter is by appointing a commissioner. Except where, the purpose of appointing a Commissioner is to note the physical features existing as on that day, appointment of Commissioner is to be undertaken only after hearing both the parties. The report submitted by an exparte Commissioner represents only the version of one party and no evidentiary value can be attached to an exparte report. Except where, the purpose of appointing a Commissioner is to note the physical features existing as on that day, appointment of Commissioner is to be undertaken only after hearing both the parties. The report submitted by an exparte Commissioner represents only the version of one party and no evidentiary value can be attached to an exparte report. If a party wants that a Commissioner be appointed for reporting the state of affairs existing on the site, they have to seek appointment of Commissioner duly putting the other party on notice, then only it is possible to reflect the facts nearer to the truth. The Court would be justified to appoint Commissioner only if it feels that the evidence on record is not sufficient to record a finding for the purpose of granting or refusing the relief of injunction. Accordingly, the appointment of the Advocate Commissioner was held to be illegal and the same was set-aside, directing the trial Court not to take into account the report submitted by the Advocate Commissioner, making it clear that there is any necessity to appoint an Advocate Commissioner, the Court can consider after leading some evidence by both the parties and if the Court feels that such a step is necessary. The learned counsel appearing for the petitioner submits that there is no distinction between the suits filed for declaration or for grant of injunction with regard to the appoint of Advocate commissioner under Order 26 Rule 9 of the Code of Civil Procedure (for short "CPC") and therefore, it cannot be said that the Advocate Commissioner cannot be appointed in a suit for grant of permanent or perpetual injunction. Order 26 Rule 9 of the Code of Civil Procedure extracted as follows:- "Order 26 Rule 9: Commissions to make local investigations:- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. The manner of executing the commissions is dealt with in Rules 10 to 22 of Order 26 CPC. The perusal of Order 26 Rule 9 CPC., goes to show that there is no distinction of the suit, in which the Advocate Commissioner can be appointed or rejected, but it makes clear that where the local investigation is required for the purpose of elucidating any matter in dispute, the Advocate Commissioner can be appointed. Therefore, I am of the opinion that it may not be correct in contending that in a suit for perpetual or permanent injunction, Advocate Commissioner cannot be appointed. The learned counsel appearing for the petitioner submits that in suits for mandatory injunction also Advocate Commissioners have been appointed by the trial Courts, which were upheld by the High Court and in one such case Mukund Lal Vs. Sharada Bai and others, this Court confirmed the order of the appointment of Advocate Commissioner by the Lower Court for noting down the physical features of the construction of the plaint schedule property in a suit filed for mandatory injunction. No doubt, the case of Mallikarjuna Srinivas Gupta Vs. K.Sheshirekha3 relates to declaration of title and other reliefs, it was held that in order to resolve the dispute between the parties and in order to do justice to both the parties, it is essential to appoint a Commissioner. By appointing a Commissioner and by local inspection of the disputed land, no prejudice will be caused. On the other hand, it will help the Court to render complete justice. Accordingly, the rejection order of the Court below, was set-aside, directing to appoint an Advocate Commissioner after giving opportunity to both the parties to file work memos before the Commissioner and the inspection to be made in the presence of both the parties with the help of the Surveyor. The learned counsel appearing for the respondent also relied on various judgments relating to the appointment of Advocate Commissioner in the suits including the suits for permanent injunction. In the instant case, no bout, an Advocate Commissioner was appointed in O.S.No.94 of 2004 and report was filed by the Advocate Commissioner in I.A.No.225 of 2004 in the said suit, which was filed by the first respondent, seeking grant of permanent injunction over the suit schedule property of an extent of Ac.1-13 cents. In the instant case, no bout, an Advocate Commissioner was appointed in O.S.No.94 of 2004 and report was filed by the Advocate Commissioner in I.A.No.225 of 2004 in the said suit, which was filed by the first respondent, seeking grant of permanent injunction over the suit schedule property of an extent of Ac.1-13 cents. The Advocate Commissioner in his report stated that according to the plaintiff in O.S.No.94 of 2004, the extent through which the cement underground pipe line embedded is 0-07 cents and the plaintiff wanted the Advocate Commissioner to note that W2 well is situated in the land of the plaintiff in Ac.1-13 cents, but not in 0-07 cents of the land belonging to the plaintiff in O.S.No.288 of 2004. Regarding the said issue, the Advocate Commissioner stated that unless the land of 0-07 cents measured with the help of the Surveyor to fix up the said 0-07 cents of land on the ground, it cannot be said that whether W2 well is situated within 0-07 cents of land. It is stated that W1 well is smaller in diameter, whereas W2 well is bigger and both wells have got stone revetments and were dried up and only bore wells are functioning with two separate connections. As the extent of 0-07 cents was not ear-marked or surveyed with the help of the surveyor by the earlier Advocate Commissioner, the plaintiff in O.S.No.288 of 2004 i.e., the petitioner herein wanted for the appointment of an Advocate Commissioner to measure the 0-07 cents of the suit schedule property in O.S.No.288 of 2004 and Ac.1-13 cents land claimed by the respondent herein with the help of the Mandal Surveyor and file a report. Therefore, it cannot be said that the report of the earlier Advocate Commissioner discloses the physical features of the respective suit schedule properties and that the Advocate Commissioner cannot be appointed in a suit for permanent injunction. I am of the opinion that the Court below has not properly appreciated the rival contentions in disposing of the said application filed for appointment of the Advocate Commissioner. Advocate Commissioner can also be appointed in a suit for permanent injunction for noting down the physical features by making local inspection of the same with the help of the revenue authorities. Advocate Commissioner can also be appointed in a suit for permanent injunction for noting down the physical features by making local inspection of the same with the help of the revenue authorities. It is for the Court below to consider the scope and ambit of the Advocate Commissioner to be appointed for a local inspection and note down the physical features with the help of the surveyor, as the report filed by the Advocate Commissioner in the suit filed by the respondent is not exhaustive and do not cover the aspect of the controversy involved in respect of the suit schedule property. Having regard to the facts and circumstances of the case, the Civil Revision Petition is allowed and the order under revision is set aside. The matter is remitted back to the Court below to reconsider afresh the application filed by the petitioner Under Order 26 Rule 9 of the Code of Civil Procedure in I.A.No.836 of 2006 for appointment of the Advocate Commissioner to note down the physical features of the suit schedule property after giving reasonable opportunity to both parties and decide as to whether the Advocate Commissioner is required to be appointed to resolve the controversy by indicating the scope of the local inspection and survey of the same with the help of the surveyor. No order as to costs.