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2019 DIGILAW 137 (AP)

Pabbiti Vijaya v. Bale Mangamma

2019-07-18

G.SHYAM PRASAD

body2019
ORDER : G. SHYAM PRASAD, J. 1. This revision is arising out of order, dated 7.2.2019 passed in IA No. 49 of 2019 in OS No. 52 of 2012 on the file of the II Additional Junior Civil Judge, Tadepalligudem. 2. The brief facts of the case are that the revision petitioner is the defendant in OS No. 52 of 2012. The said suit was filed by the 1st respondent herein against the petitioner for possession of schedule property after evicting the defendants there from. 3. The respondent/plaintiff in order to prove possession over the schedule property got measured the land through a mandal surveyor and submitted a report of the mandal surveyor and rough sketch before the Court. The petitioner/defendant contends that the mandal surveyor has not given any notice while measuring the land and she had totally denied the report submitted by the respondent before the Court. It is the case of the petitioner/defendant that she had never encroached the property of the respondent. Therefore, the petitioner has filed an application in IA No. 49 of 2019 for appointment of an Advocate Commissioner for noting down the physical features of her property and the property of the respondent with reference to the title deeds of the respective parties in the suit. 4. The Trial Court on consideration of the pleadings of both parties has dismissed the application for appointment of Commissioner. Aggrieved by the same, the present revision has been preferred by the petitioner/defendant seeking for appointment of Commissioner for noting the physical features of the schedule property with reference to the title deeds of the respective parties. 5. The order passed by the II Additional Junior Civil Judge reveals that the mandal surveyor was examined as P.W. 4 on 18.1.2018 as a witness in the above suit. The Trial Court mainly dismissed the application for appointment of Commissioner on the ground that mandal surveyor was appointed to measure the land in IA No. 1230 of 2017, and as the petitioner has not given any suggestion to mandal surveyor that he had not given any notice to the petitioner before measuring the land. On that ground, that Trial Court dismissed the application of the petitioner for appointment of Commissioner holding that there was no need to appoint an Advocate Commissioner for the same purpose. On that ground, that Trial Court dismissed the application of the petitioner for appointment of Commissioner holding that there was no need to appoint an Advocate Commissioner for the same purpose. It is also observed by the Trial Court that the petitioner was coming up with one petition or the other without adducing evidence on his behalf. 6. Learned Counsel for the petitioner mainly submits that the mandal surveyor has not conducted any survey of the land and had not submitted any report. He had not given any notice to the petitioner before measuring the land. In order to resolve the dispute between the petitioner and the respondent with regard to possession of the schedule property, the extent of the land alleged to have been encroached could be proved only by measuring the land through an Advocate Commissioner in this matter. 7. Learned Counsel for the petitioner further submits that though the II Additional Junior Civil Judge has referred to IA No. 1230 of 2017 through which, mandal surveyor was appointed, the same is not in existence and therefore, the appointment of Commissioner for surveying the land with reference to the title deeds of the parties is very essential in this matter. 8. The petitioner is the 1st defendant in the suit. She has filed written statement denying the allegations that the mandal surveyor surveyed the property on 6.8.2011 and issued a certificate on 30.11.2011 with a finding that the defendants encroached the site of the plaintiff. According to her, the said survey was not at all conducted and the alleged survey report was brought into existence by the plaintiff by influencing the concerned authority. Therefore, the petitioner seeks for appointment of Commissioner in this matter for noting down the physical features of the schedule property with reference to their title deeds. 9. Learned Counsel for the petitioner placed reliance on the decision reported in Velaga Narayana and others v. Bommakanti Srinivas and others, 2014 (3) ALD 605 and argued that in the decision referred a petition filed for appointment of Commissioner for survey of land was dismissed by the Trial Court on the ground that already survey was conducted by the Inspector of Survey and Land Records. Subsequently, when dispute arose with regard to the identity of the land covered by the said survey number, a letter was addressed to the Assistant Director of Survey and land records to conduct re-survey by the Deputy Inspector of Survey and Land Records. 10. The appointment of Commissioner for local investigation is governed by the provision under Order XXVI Rule 9 of CPC. The Commissioner's evidence only enables the Court to appreciate the other evidence led by the parties. The evidence of the Commissioner itself is not proof of title. This preposition of law was laid down in 1977 ALT 534. 11. The appointment of Commissioner cannot be made for collecting the evidence in favour of either the plaintiff or the defendant. The evidence which cannot otherwise be procured only has to be obtained by issuing a commission. This preposition of law was laid In Re. P Moosa Kutty's case, AIR 1953 Mad. 717 . 12. In the instant case, the surveyor has already been surveyed the land and submitted his report but he was examined as witness P.W. 4 in the suit. Therefore there is some material with regard to the measurement of the schedule property. 13. The contention of the petitioner is that the surveyor has not conducted any survey and if at all he has conducted any survey he has not given any notice to the petitioner and the report of the Commissioner is fabricated are all questions of facts which cannot be gone into unless there is substantial material to prove that aspect in this application. 14. The report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record, but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made investigation. 15. In the instant case, the surveyor has been appointed and he has surveyed the land and submitted a report before the Court and he was examined as witness P.W. 4, there was ample opportunity for cross-examining him for the petitioner. 15. In the instant case, the surveyor has been appointed and he has surveyed the land and submitted a report before the Court and he was examined as witness P.W. 4, there was ample opportunity for cross-examining him for the petitioner. If the petitioner is able to establish that the survey was not conducted properly and on those grounds the petitioner may seek for appointment of a Commissioner and the Court would pass orders using its discretion in accordance with law. 16. Admittedly, the suit is pertaining to the year 2012. The mandal surveyor who is alleged to have measured the land and given a report was examined as P.W. 4 in the suit. Learned Counsel for the petitioner is disputing that there was no IA No. 1230 of 2017 filed for appointment of mandal surveyor for measuring the land. This is a disputed question of fact. Unless some evidence is produced before the Court, this fact cannot be considered as a fact. The Trial Court has referred IA No. 1230 of 2017 in Para 7 of its order. Therefore, it appears that the Court might have appointed mandal surveyor who had measured the land and submitted report accordingly. There is no material brought on record to show that the finding of the Trial Court in that regard is incorrect and there was no IA No. 1230 of 2017 filed before the Trial Court for appointment of Mandal Surveyor. 17. It is also pertinent to note that mandal surveyor was examined as P.W. 4 in the suit, which appears that he was cross-examined on behalf of the petitioner also. The petitioner has not brought any material on record that the mandal surveyor has not measured the land properly and that he has not given any notice before measuring the land and the report filed by him is false and fabricated. As such the petitioner is not entitled to seek for appointment of Commissioner for conducting survey again as rightly observed by the Trial Court. It is also pertinent to note that unless the petitioner establishes that there is defect in conducting the survey he cannot seek for appointment of a surveyor again for the same purpose. Therefore, there are no valid grounds to interfere with the order passed by the Trial Court. 18. Accordingly, the civil revision petition is dismissed. No order as to costs. Therefore, there are no valid grounds to interfere with the order passed by the Trial Court. 18. Accordingly, the civil revision petition is dismissed. No order as to costs. Miscellaneous petitions, if any pending in this revision shall stand closed.