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2022 DIGILAW 1122 (AP)

Thota Tambi@prabhakara Rao v. Shaik Abdullah

2022-10-28

SUBBA REDDY SATTI

body2022
ORDER : 1. Defendants in suit filed the above revision against the order dated 18.01.2022 in I.A.No.94 of 2020 in O.S.No.257 of 2015 on the file of I Additional Junior Civil Judge, Eluru. 2. Respondent herein, being plaintiff filed suit O.S.No.257 of 2015 for recovery of possession of plaint schedule property and for permanent injunction. 3. Pleaded case of the plaintiff is that he purchased an extent of 42 square yards of site in R.S.No.439/1, adjacent to his house on Northern side from one Shaik Saleem under a registered sale deed dated 06.09.2005; that vendor’s mother purchased the property under a registered sale deed dated 23.03.1997; that plaint schedule property is a vacant site; that prior to purchase of plaint schedule property, plaintiff already purchased 134 square yards to the South of plaint schedule property and he constructed a pucca building and has been residing therein; that defendants who are residing on road side attempted to trespass into the schedule property and the plaintiff filed suit O.S.No.426 of 2010 for permanent injunction and the said suit was dismissed; that subsequent to dismissal of said suit, defendants raised asbestos roof shed and hence, suit is filed for recovery of possession of plaint schedule property. 4. Written statement was filed on behalf of defendants and contended interalia that defendants have been residing in the thatched house and 1st defendant is running cycle shop in the cement sheet shed in 100 square yards of their site since several decades. Plaintiff kept quiet for so many decades and filed the frivolous suit and suit for recovery of possession without asking for declaration is not maintainable and eventually prayed the Court to dismiss the suit. 5. Pending the suit, plaintiff filed I.A.No.94 of 2020 under Order XXVI Rule 9 and Section 151 of CPC to appoint advocate commissioner to measure the site belongs to plaintiff and defendants with registered documents and to note down the physical features with the assistance of Mandal Surveyor. 5. Pending the suit, plaintiff filed I.A.No.94 of 2020 under Order XXVI Rule 9 and Section 151 of CPC to appoint advocate commissioner to measure the site belongs to plaintiff and defendants with registered documents and to note down the physical features with the assistance of Mandal Surveyor. In the affidavit filed in support of the petition, while reiterating the contents in the plaint, it was further averred that the defendants/respondents with their sisters jointly executed a registered partition deed dated 09.10.2015; that 1st defendant got 23 square yards and 66 square yards in R.S.No.439/1 and 2nd defendant got 46 square yards in R.S.No.439/1 and whereas in written statement, it was contended that they are in possession of 100 square yards only. Hence, this application is filed for the reliefs stated supra. 6. This application was opposed by the respondents and contended interalia that in the earlier suit filed for injunction O.S.No.426 of 2010, Advocate Commissioner was appointed in I.A.No.1007 of 2010 and he, in turn, filed report stating that there is no existence of plaint schedule property in between the properties of petitioners and respondents and the said suit was dismissed on 24.07.2013. The present petition is filed to gather evidence and prayed the Court dismiss the petition. 7. Trial Court by order dated 18.01.2022 allowed the application and appointed Sri K.V.Satyanarayana as advocate commissioner to measure the sites of both petitioner and respondents with the help of their registered documents with the assistance of Mandal Surveyor, Pedapadu and also to note down the physical features of plaint schedule property and to file a plan/sketch of the sites of both parties. Aggrieved by the said order, the above revision is filed. 8. In this civil revision petition, 2nd respondent is shown as died. 9. Heard Sri C.Venkaiah, learned counsel for revision petitioners and Sri T.C.Krishnan, learned counsel for respondent. 10. Learned counsel for revision petitioners would submit that application was filed to gather evidence and hence, the trial Court ought to have dismissed the same. He would also submit that in O.S.No.426 of 2010 filed for injunction, an advocate commissioner was appointed and hence, there is no need to appoint another advocate commissioner. 11. 10. Learned counsel for revision petitioners would submit that application was filed to gather evidence and hence, the trial Court ought to have dismissed the same. He would also submit that in O.S.No.426 of 2010 filed for injunction, an advocate commissioner was appointed and hence, there is no need to appoint another advocate commissioner. 11. Learned counsel for respondent while supporting the order of the trial Court would submit that since the suit is filed for recovery of possession basing on a registered document, the report of the advocate commissioner will help the Court to deal with the matter on merits. 12. Suit O.S.No.257 of 2015 is filed by the plaintiff for recovery of possession of property and consequential permanent injunction. Plaintiff pleaded title to the suit schedule property by way of registered document and also pleaded encroachment of the schedule property after dismissal of his earlier suit for injunction. Defendants by filing written statement contended that they have been residing in thatched roof house and 1st defendant is running cycle shop in cement sheet shed in 100 square yards and they have been residing there since decades. 13. In the affidavit filed in support of the petition, plaintiff would contend that defendants partitioned their properties under registered partition deed dated 09.10.2015, wherein it was mentioned that 1st defendant got 23 square yards and 66 square yards in R.S.No.439/1 and 2nd defendant got 46 square yards in R.S.No.439/1 and thus, they are in possession of 135 square yards. The registered partition deed pleaded by the plaintiff belonged to the defendant was not marked and even not pleaded by the defendants in their written statement. 14. Appointment of Commissioner etc., is contemplated under Section 75 of Code of Civil Procedure. 75. Power of court to issue commissions: - Subject to such conditions and limitations as may be prescribed, the Court may issue a commission – (a) to examine any person; (b) to make a local investigation; (c) to examine or adjust accounts; or (d) to make a partition; (e) to hold a scientific, technical, or expert investigation; (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; (g) to perform any ministerial act. Order XXVI Rule 9: Commissions to make local investigation:- 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: 15. The object of issuance of commission under Order XXVI Rule 9 of CPC is to elucidate any matter in dispute but not to collect or gather evidence. An Advocate-Commissioner cannot be appointed for making an enquiry about factum of possession of the property in dispute, which is nothing, but fishing of evidence and not elucidating any matter in dispute. 16. In Bandaru Mutyalu Vs. Palli Appalaraju, [ 2013 (6) ALT 26 ], learned single Judge of composite High Court held that in situations where there is controversy as to identification, location or measurement of the land, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared and the object of local investigation under Order XXVI, Rule 9 of the Code which cannot belittled. 17. In Mallikarjuna Srinivasa Gupta Vs. K. Sheshirekha, [ 2006 (3) ALD 362 ], in a suit filed for declaration of title and recovery of possession etc., interlocutory application was filed contending interalia that the defendant in the suit encroached a portion of the site. Defendant denied the averment in the plaint regarding encroachment. It was further pleaded about earlier suit filed for injunction and dismissal of application in that suit. Learned single Judge of composite high 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 Page 5 of 8 Page 6 of 8 No.62. Therefore, it is essential to consider the request of the petitioner for appointment of Advocate Commissioner for the purpose mentioned therein”. 18. In Shaik Zareena Kasam Vs. Therefore, it is essential to consider the request of the petitioner for appointment of Advocate Commissioner for the purpose mentioned therein”. 18. In Shaik Zareena Kasam Vs. Patan Sadab Khan, [ 2011 (4) ALD 231 ], learned single Judge of the composite High Court held at Para-10 as follows: “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.” 19. In Donadulu Uma Devi Vs. Girika Katamaiah @ Basaiah, [ 2013 (1) ALT 548 ], learned single Judge of the composite High Court held as follows: “12. … that when there is a dispute or issue with regards to identity of a property in a litigation it is necessary to appoint a Commissioner for localizing the property which may be even by taking necessary assistance from a qualified surveyor which will not amount to collecting evidence which is prohibited.” 20. In Haryana Waqf Board and others Vs. Shanti Sarup and others, [ 2008 (8) SCC 671 ], the Hon’ble Apex Court held thus: “Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC”. 21. In the suit filed for recovery of possession of property, plaintiff asserted title to the plaint schedule property by way of registered document. Defendants initially did not aver anything about the registered document. However, plaintiff himself filed registered partition deed said to have been affected between defendants along their sister. Of course, these documents are yet to be marked. Thus, the registered documents are available with both parties. Plaintiff alleged that defendants occupied the plaint schedule property and erected shed therein. Defendants denied the same by filing written statement. In view of the denial, unless the Court elucidate the information regarding the measurements of property available on land, any amount of evidence basing on registered documents is of no avail. Plaintiff alleged that defendants occupied the plaint schedule property and erected shed therein. Defendants denied the same by filing written statement. In view of the denial, unless the Court elucidate the information regarding the measurements of property available on land, any amount of evidence basing on registered documents is of no avail. If advocate commissioner is appointed to measure the property basing on registered documents, it will help the Court to find out as to the existence of property on land. In view of the dispute, appointment of advocate commissioner to measure the property will not amount to gathering of evidence. It is not the case of respondent that in earlier suit O.S.No.426 of 2010 properties were measured as per the registered documents. 22. Considering the facts and circumstances of the case, since trial Court did not exceed its jurisdiction, in the considered opinion of this Court, the order under revision does not brook interference from this Court exercising powers under Art 227 of the Constitution of India. The revision is liable to be dismissed. 23. Accordingly, the Civil Revision Petition is dismissed. No order as to costs. As a sequel, all the pending miscellaneous applications shall stand closed.