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2019 DIGILAW 118 (AP)

Bobba Suresh v. Someswara Swamy Vari Devastanam

2019-07-08

G.SHYAM PRASAD

body2019
ORDER : G. Shyam Prasad, J. 1. This revision is arising out of order, dated 12.12.2018 passed in IA No. 1134 of 2018 in OS No. 176 of 2014 on the file of the Senior Civil Judge, Narasapuram, dismissing the application filed under Order 26 Rule 9 and Section 151 CPC for appointment of an Advocate Commissioner for the purpose of taking measurements of the plaint schedule land. 2. The brief facts of the case are that the respondent herein has filed Suit OS No. 176 of 2014 for recovery of Makta against the revision petitioner. The petitioner has filed a petition under Order 26 Rule 9 and Section 151 CPC for appointment of an Advocate Commissioner for measuring the land leased out by the respondent temple to the petitioner-tenant under a lease deed. The said petition was dismissed by the Trial Court on the ground that the terms of lease Condition No. 22 is to the effect that the land was leased on Makta to the tenant and the tenant is not entitled to dispute the extent of land leased out to him, as such, the revision petitioner is bound by the terms and conditions of the lease deed. Therefore, the Commissioner cannot be appointed in this case for measuring the land. The Trial Court also found that the revision petitioner has filed the above application for appointment of an Advocate Commissioner at the fag end of the trial for measuring the land, which is not required to be done under Condition No. 22 of the lease deed. 3. Learned Counsel for the petitioner vehemently contended that the petitioner intends to prove that there is difference in the extent of land as per lease agreement and the land actually leased out. It is also contended that the respondent-temple played fraud in leasing the less extent of land and claimed land for more extent of land, as such, the petitioner sought for appointment of an Advocate Commissioner for measuring the land. According to the petitioner, the appointment of an Advocate Commissioner is essential for disposal of the suit before the Trial Court. 4. Learned Counsel for the petitioner placing reliance on the judgments viz., 1. Mallikarjuna Srinivas Gupta v. K. Sheshirekha, 2006 (3) ALD 362 ; 2. T. Chittemma v. The Tirumala Tirupathi Devasthanams, Tirupathi, 2012 (1) ALD 118 ; 3. According to the petitioner, the appointment of an Advocate Commissioner is essential for disposal of the suit before the Trial Court. 4. Learned Counsel for the petitioner placing reliance on the judgments viz., 1. Mallikarjuna Srinivas Gupta v. K. Sheshirekha, 2006 (3) ALD 362 ; 2. T. Chittemma v. The Tirumala Tirupathi Devasthanams, Tirupathi, 2012 (1) ALD 118 ; 3. A.V.M. Sales Corporation v. Anuradha Chemicals Pvt. Ltd., and 4. Yanala Malleshwari and others v. Ananthula Sayamma and others, 2006 (6) ALD 623 (FB), contended that this a fit case where the Commissioner can be appointed for measuring the land. 5. Learned Counsel for the respondent-temple submits that in view of Condition No. 22 in the lease agreement, there is no need to appoint a Commissioner in this matter and the petition may be dismissed as the petition was filed with an intention to collect the evidence on behalf of one party. 6. At the outset, this is a petition filed under Order 26 Rule 9 CPC for appointment of Commissioner to measure the land in a suit filed for recovery of Makta. There is no dispute with regard to the title or boundaries of the land leased. Admittedly, there is a Condition No. 22 in the agreement that Makta was based on the land and the tenant cannot raise any dispute with regard to the extent of land. 7. In Mallikarjuna's case (supra), the Court held that appointment of Commissioner was essential for conducting a local inspection. It was a case where some constructions were made in the disputed land. So the Commissioner was appointed to note down the physical features to resolve the dispute in that case. In the instant case, the facts are otherwise. The petitioner took the defendant land on Makta subject to Condition No. 22 referred above. The petitioner challenged that Condition No. 22 was bad and there was fraud played by the respondent while leasing the land with Condition No. 22. 8. In the light of the above discussion, it is obvious that the facts referred in the above decision are different from the present case and hence, the decision is not application to the present case. 9. It is further argued by the learned Counsel for the petitioner that the terms and conditions in the agreement are terms against the provisions of Contract Act under Sections 23 and 28. 9. It is further argued by the learned Counsel for the petitioner that the terms and conditions in the agreement are terms against the provisions of Contract Act under Sections 23 and 28. In fact this condition is in respect of merits of the case, which requires detailed examination and the question of fact, which has to be done in the main suit and not in the revision filed under Article 227 of the Constitution of India. As such, the decision referred by the Counsel in AVM Sales Corporation's case (supra), is not applicable at this stage of the case in view of the fact that this Court cannot go into the merits of the case as the petition under challenge is only for appointment of an Advocate Commissioner. 10. Relying on Para 68 of Yanala Malleshwari's case (supra), learned Counsel for the petitioner argued that fraud unravels everything. In Shrist Dhawan v. Shaw Brothers, AIR 1992 SC 1555 , it was held thus: "Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton/s sorcerer, Comust, who exulted in his ability to, wing me into the easy hearted man and trap him into shares. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary fraud is equity has been defined as an act or omission to act or concealment by which one person obtains an advantage against conscience over another or which equity or public policy forbids as being prejudicial to another. In Black's Legal Dictionary, fraud is defined as an international perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representation about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it has false." 10A. In fact, the petitioner has taken a plea of fraud and to prove the fraud, he has sought for appointment of Advocate Commissioner for measuring the land. Precisely the dispute is that the land leased was having less extent and therefore, the petitioner is not liable to pay Makta for the entire land. 11. It is pertinent to note that the Trial Court has rightly held that the petition for appointment of Commissioner was filed at the fag end of the trial, which clearly shows the intention of the petitioner to drag on the proceedings without paying Makta atleast for the admitted portion of the land leased to him. It is obvious that in a suit for recovery of Makta, the petitioner is disputing with regard to the extent of the land leased to him. 12. Learned Counsel for the respondent contended that the petitioner has not paid any Makta even for the admitted extent of land and it is a frivolous litigation filed only to evade the payment of Makta to protract the trial. 13. On consideration of the entire material on record, and the facts and circumstances of the case, it is obvious that the petitioner has filed the petition for appointment of Commissioner for measuring the land, which was leased out to him on payment of Makta. The difference of the land physically appears to be few cents. The burden is on the petitioner to prove that the land in dispute was fallen short of few cents by producing his own evidence. It is also pertinent to note that there are laches on the part of the petitioner that he cannot keep quiet for all these years and at the fag end of the trial of the suit, he has filed this petition for appointment of Commissioner to measure the land. It is also pertinent to note that there are laches on the part of the petitioner that he cannot keep quiet for all these years and at the fag end of the trial of the suit, he has filed this petition for appointment of Commissioner to measure the land. There are no bona fides on the part of the petitioner in filing the petition at this belated stage that too when there is a condition in the lease deed that of the petitioner shall not raise any dispute with regard to the extent of land. The contention of the petitioner that the respondent was not aware of the condition cannot be a reasonable ground for accepting his contention. On the other hand, the contention raised by the petitioner that fraud is played is a question of fact, which cannot be decided in this revision for the purpose of appointment of Advocate Commissioner. There are absolutely no grounds for appointment of a Commissioner in this case. Therefore, the order passed by the Trial Court does not require any interference. 14. Accordingly, the civil revision petition is dismissed with costs payable to the respondent. The Trial Court is directed to expedite the trial of the suit. Miscellaneous petitions, if any pending in this revision shall stand closed.