Research › Search › Judgment

Andhra High Court · body

2011 DIGILAW 302 (AP)

Shaik Zareena Kasam v. Patan Sadab Khan

2011-04-01

B.CHANDRA KUMAR

body2011
Judgment : 1. This revision is directed against the order dated 11.06.2007 passed in I.A.No.293 of 2007 in O.S.No.209 of 2004 by the Principal Junior Civil Judge, Rayachoty, Kadapa District. 2. The petitioner herein is defendant No.3 and the first respondent herein is the plaintiff in the Original Suit. For the sake of convenience, the parties will be referred to as they were arrayed in the Original Suit. 3. The brief facts of the case are as follows:- The plaintiff – Patan Sadab Khan filed a suit being O.S.No.209 of 2004 before the Court below seeking permanent injunction against the defendants therein, not to interfere with his peaceful possession and enjoyment of the suit schedule property, which has been described as rice mill which is running in the name and style of ‘Gora Industrial Complex’ at G.K.Rachapalli of Madithadu Revenue Village of T.Sundupalli Mandal in Survey No.984/A in an extent of Acs.0.20 cents bounded on the east by vacant site and juice factories, west by Rastha, North by Rastha and South by Rayachoty – Pincha Road. 4. The plaintiff claimed to be the owner of the suit schedule property and that he had constructed the rice mill and obtained permission to run the same. The first defendant is the father and the second defendant is the brother of the plaintiff and the third defendant was subsequently impleaded as party to the suit. The third defendant filed a written statement mainly contending that there is no such rice mill in an extent of Acs.0.20 cents of land Survey No.984/A, as shown in the suit schedule within its boundaries. The contention of the plaintiff that the suit property is his self acquired property was also denied. We are not concerned with the other pleas raised by the parties in this revision. The only dispute that is to be adjudicated in this revision is whether the rice mill is situated in an extent of Acs.0.20 cents of land within the boundaries of the plaint schedule in Survey No.984/A. 5. The third defendant filed an application in I.A.No.293 of 2007 before the Court below to appoint an Advocate Commissioner to inspect the suit property and to note down the physical features and to take photographs of the same with the assistance of the sketch prepared by the Municipal Surveyor, T.Sundupally. The third defendant filed an application in I.A.No.293 of 2007 before the Court below to appoint an Advocate Commissioner to inspect the suit property and to note down the physical features and to take photographs of the same with the assistance of the sketch prepared by the Municipal Surveyor, T.Sundupally. In her application, she had specifically mentioned that there is no such rice mill as alleged by the plaintiff in Survey No.984/A in Acs.0.20 cents of land. The plaintiff filed counter and he had taken two grounds, i.e., (1) The petition filed by the third defendant is belated one; and (2) The third defendant had admitted that the suit property is covered under Survey No.984/A in an extent of Acs.0.20 cents of land. 6. The Court below, observing that the main suit is filed for declaration and permanent injunction and that the suit is coming up for cross-examination of P.W.1 and at that stage, this petition for appointment of Advocate Commissioner was filed and that the petition is belated one and that there are no grounds to appoint an Advocate commissioner, dismissed the petition filed by the petitioner herein, which is impugned in this revision. 7. Learned counsel for the petitioner, in support of his contention that an Advocate Commissioner should be appointed to inspect the suit property, has relied upon the judgment of this Court in the case between Varala Ramachandra Reddy Vs. Mekala Yadi Reddy and others 2010 (4) ALD 198 , wherein, it was held that an Advocate Commissioner can be appointed in an injunction suit for local inspection of the suit site and to demarcate the suit schedule property with the help of the Surveyor. Learned counsel has also relied on the judgment of this Court in the case between Mallikarjuna Srinivasa Gupta Vs. K.Sheshirekha 2006 (3) ALD 362 , in which case, a suit was filed for declaration of title and an application was filed contending that the defendant therein encroached a portion of the site. The stand of the defendant therein was that he has not encroached any portion of the site as alleged by the plaintiff. In the circumstances, this Court held as follows:- “By mere looking into the sale deed or the lay out, it is not possible to determine the rights, unless it is verified whether any portion of the building is constructed in Plot No.62. In the circumstances, this Court held as follows:- “By mere looking into the sale deed or the lay out, it is not possible to determine the rights, unless it is verified whether any portion of the building is constructed in Plot No.62. Therefore, it is essential to consider the request of the petitioner for appointment of Advocate Commissioner for the purpose mentioned therein.” Thus, directing the lower Court therein to appoint an Advocate Commissioner to inspect the land with the help of the Surveyor, the said revision was allowed. 8. The only point that arises for consideration in this revision is whether the impugned order is sustainable. 9. Admittedly, according to the plaintiff, the rice mill is situated in an extent of Acs.0.20 cents of land in Survey No.984/A within the specific boundaries as shown in the plaint. According to the third defendant, the said contention of the plaintiff is not correct and that there is no such rice mill in an extent of Acs.0.20 cents of land. 10. 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. It is always better if the parties are allowed to adduce evidence at the stage of trial for better appreciation of the facts which will help the Court in effectively deciding the main dispute between the parties. If there is some delay in filing the application to appoint an Advocate Commissioner and if there are some laches on the part of one party, the Court may impose reasonable costs, but it is not desirable to dismiss an application on the ground of mere delay in filing it. In the light of the above referred decisions, I am of the view that the impugned order does not sustain in the eyes of law. 11. In the result, the Civil Revision Petition is allowed by setting aside the impugned order. The Court below is directed to appoint an Advocate Commissioner and the Advocate Commissioner so appointed may take the Work-Memo from both the parties and after putting both the parties on notice, should execute the warrant and submit his report into the Court. 11. In the result, the Civil Revision Petition is allowed by setting aside the impugned order. The Court below is directed to appoint an Advocate Commissioner and the Advocate Commissioner so appointed may take the Work-Memo from both the parties and after putting both the parties on notice, should execute the warrant and submit his report into the Court. The Advocate Commissioner may, if so advised, take the assistance of the Surveyor in executing the work. There shall be no order as to costs.