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2012 DIGILAW 379 (AP)

Gonipati Tatabbai v. Manukonda Atchayamma

2012-04-03

C.V.NAGARJUNA REDDY

body2012
Judgment : This civil revision petition is filed against order, dated 27.07.2011, in I.A.No.113 of 2009 in O.S.No.18 of 2006, on the file of the learned Junior Civil Judge, Razole. The petitioner filed the above-mentioned suit for declaration of title. The trial of the suit is yet to begin. He has filed I.A.No.113 of 2009 for appointment of an Advocate Commissioner to localise the suit schedule property and to draw a line of demarcation between his lands and that of the defendants. This application was dismissed by the lower Court by observing that the application is premature. At the hearing, Ms.Nimmagadda Revathi, learned counsel, representing Sri Nimmagadda Satyanarayana, learned counsel for the petitioner, questioned the reasoning of the learned Junior Civil Judge, Razole and contended that an Advocate Commissioner can be appointed at any stage for making local inspection. In support of this contention, she placed reliance on the judgment of this Court in N.Savitramma and another v. B.Changa Reddy (1988 (1) (HC) APLJ 45). Order XXVI Rule 9 CPC does not prescribe any stage for appointment of an Advocate Commissioner. However, there seem to be divergent opinions on this aspect. In N.Savitramma (1 supra), a suit for declaration of title and for permanent injunction was filed. The defendant filed an application for appointment of a Commissioner for noting down the physical features of the property, as it is his pleaded case that the entire mango garden, which belongs to him, forms one single unit and the same was surrounded by fencing separating the land of the petitioners with that of the mango garden in question. The said application was dismissed by the trial Court on the ground that unless the evidence is let in and the documents are perused, the Commissioner could not be appointed. When the said order was questioned by the unsuccessful defendant, this Court has reversed the same. The said application was dismissed by the trial Court on the ground that unless the evidence is let in and the documents are perused, the Commissioner could not be appointed. When the said order was questioned by the unsuccessful defendant, this Court has reversed the same. After referring to the judgment of the Madras High Court In Re P.Moosa Kutty (AIR 1953 Madras 717), and the judgments of this Court in C.Veeramma v. C.Venkatachalam ( AIR 1959 AP 170 ), Y.Sambaiah v. J.Basavapurna ( AIR 1975 AP 15 ) and K.Kutumba Rao v. M.Venkata Subba Rao ( AIR 1969 AP 47 (DB)), this Court, while placing reliance on the last mentioned Division Bench judgment of this Court, held as under: “…In view of the aforesaid binding authority, it is clear that an Advocate-Commissioner could be appointed to make a local investigation either under Order 26 Rule 9 or even under Order 39 Rule 7(1)(a), if the circumstances of the case deem it necessary for the purpose of noting the physical features of any land or property. Such a commissioner could be appointed ex-parte even without notice to the opposite party. However, after appointment of the Commissioner notice has to be given by the Court as well as the Commissioner to the opposite party under Order 26 Rule 18 CPC.” It was further held as under: “…The plaintiff could, in my view, certainly take the assistance of the Court to have the physical features of property noted by an officer of the Court, namely, an Advocate-Commissioner, before the said features are obliterated either by the opposite party or by the vagaries of the nature. If the physical features of the land as on the date of the suit are allowed to be obliterated and a Commissioner is to be appointed several years after the filing of the suit or at the end of the trial or during the trial, the very object of getting the best evidence before the Court would be frustrated. If the physical features of the land as on the date of the suit are allowed to be obliterated and a Commissioner is to be appointed several years after the filing of the suit or at the end of the trial or during the trial, the very object of getting the best evidence before the Court would be frustrated. That would enable the defendants in the suit to take advantage of their might and alter the physical features of the land and also protract the trial till such time that those features were obliterated by lapse of time or by the defendants’ action too.” A slightly contra view was expressed by this Court in Dammalapati Satyanarayana and others v. Datla Venkata Ramabhadra Raju @ D.V.R.Raju and another ( 2006(4) ALD 675 ), wherein it was held that an Advocate Commissioner cannot be appointed for the purpose of localising the suit schedule property on the basis of the suit title deeds being relied upon by both the parties, unless the Court considers the title deeds after both the parties let in evidence and decides on the admissibility and relevancy of the documents. On that premise, this Court opined that appointment of Advocate Commissioner shall await completion of trial. In my opinion, the stage of appointment of Commissioner requires to be decided depending upon the facts and circumstances of each case. If circumstances discussed in N.Savitramma (1 supra) exist, the Court can certainly appoint an Advocate Commissioner even before commencement of trial, whereas in the cases, such as the one dealt with by this Court in Dammalapati Satyanarayana (6 supra), appointment of Advocate Commissioner needs to be put off till the trial is completed. In the instant case, the petitioner has averred in the affidavit that he has purchased the property shown as ABCD in the suit schedule under registered sale deed, dated 03.09.2005, executed by respondent No.2 (defendant No.2) and that respondent No.1 (defendant No.1) having some land to the South of the said property has encroached into the plaint schedule property unauthorisedly and unlawfully and constructed a wall. He has further averred that in view of construction of the said wall, he is not in a position to enjoy his property beyond the said wall. He has, therefore, sought for appointment of an Advocate Commissioner to note down the physical features of the suit schedule property. He has further averred that in view of construction of the said wall, he is not in a position to enjoy his property beyond the said wall. He has, therefore, sought for appointment of an Advocate Commissioner to note down the physical features of the suit schedule property. This case does not fall in the category of cases discussed in N.Savitramma (1 supra). Equally, it may not fall in the category of cases discussed in Dammalapati Satyanarayana (6 supra). No prejudice will be caused to the petitioner if he is made to wait till completion of the trial because it is not his plea that unless the Commissioner is appointed and the physical features are noted down, the respondents are going to change the character of the property by altering its physical features. In the light of these facts, this Court need not interfere with the view taken by the lower Court that the petitioner’s request for appointment of Commissioner can be considered at a later stage. For the above-mentioned reasons, the civil revision petition is dismissed with liberty to the petitioner to renew his application for appointment of Advocate Commissioner immediately on completion of trial. As a sequel to dismissal of the civil revision petition, C.R.P.M.P.No.2162 of 2012 shall stand disposed of as infructuous.