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2022 DIGILAW 116 (TS)

B. Bikshapathi v. P. Radha

2022-03-02

A.VENKATESHWARA REDDY

body2022
ORDER : 1. This Civil Revision Petition is filed by the petitioner/defendant No. 1 assailing the orders dated 01.06.2017, in I.A. No. 1028 of 2015 in O.S. No. 2616 of 2007, on the file of the learned First Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar. 2. This application in I.A. No. 1028 of 2015 was filed by the petitioners/plaintiffs under Order XXVI Rule 9 read with 151 of Civil Procedure Code (for short CPC) for appointment of Advocate Commissioner to note down the physical features and boundaries of suit schedule property. 3. Heard on both sides. For the sake of convenience, the parties herein are referred as plaintiffs and defendants as arrayed in the original suit. The respondents 1 and 2 have also filed a detailed counter. 4. The plaintiffs have filed the original suit O.S. No. 2616 of 2007 for declaration of title and recovery of possession. Originally, the plaintiffs have filed suit in O.S. No. 870 of 2000 for perpetual injunction against the same defendants and that suit was dismissed after full length trial. Aggrieved by the same, the plaintiffs have preferred A.S. No. 251 of 2006, on the file of Principal District Judge, Ranga Reddy. During pendency of the said appeal, the plaintiffs have filed I.A. No. 599 of 2007 seeking permission to withdraw the said appeal with a liberty to file a comprehensive suit against defendant No. 1 for declaration of title and recovery of possession. That is how the present suit in O.S. No. 2616 of 2007 is filed by the plaintiffs against the defendant No. 1 and defendant Nos. 2 to 5. 5. In O.S. No. 2616 of 2007, a comprehensive suit for declaration of title, recovery of possession, after the written statement of defendants was filed, issues were settled, evidence on behalf of both the parties was let in and the evidence was closed on 20.11.2015. Thereafter, from 27.11.2015 onwards, the suit is being adjourned only for submission of arguments of both sides. At that stage, on 04.12.2015, the present application is filed by the plaintiffs under Order XXVI Rule 9 read with Section 151 of C.P.C. stating that the plaintiffs are the owners of residential plot bearing No. 71, admeasuring 190 Sq. Thereafter, from 27.11.2015 onwards, the suit is being adjourned only for submission of arguments of both sides. At that stage, on 04.12.2015, the present application is filed by the plaintiffs under Order XXVI Rule 9 read with Section 151 of C.P.C. stating that the plaintiffs are the owners of residential plot bearing No. 71, admeasuring 190 Sq. yards in Survey Nos.272 and 273, situated at Bagh Hayathnagar Village with précise boundaries as mentioned in the schedule of property, whereas, the defendant No. 1 is denying the existence of the above boundaries. Hence, it is necessary to bring the facts before the Court and for that purpose, appointment of Advocate Commissioner to note down the physical features of suit schedule property is very much essential. 6. This application was resisted by the defendants who filed a detailed counter denying the petition averments stating that plaintiffs be put to strict proof of the allegations and the appointment of Advocate Commissioner is not necessary when the evidence otherwise is available on record. Plaintiffs have filed this petition only to drag on the matter. In a suit for declaration of title, it is for the plaintiffs to prove their possession and title based on oral and documentary evidence. The defendants have purchased the suit schedule property from its original owner who is a pattadar and the survey number of the plaintiffs and that of the defendants is different. It was also well established in the proceedings in the earlier suits in O.S. No. 870 of 2000 and O.S. No. 906 of 2000. 7. The suit in O.S. No. 870 of 2000 was filed by the plaintiffs herein as stated above. Having lost the original suit, the plaintiffs have filed appeal in A.S. No. 251 of 2006 and during pendency of the said appeal, as per the orders in I.A. No. 599 of 2007, it was withdrawn with a liberty to file separate comprehensive suit. Whereas, the suit filed by the defendant herein in O.S. No. 906 of 2000 was decreed against plaintiff No. 2 and it has attained finality. 8. Whereas, the suit filed by the defendant herein in O.S. No. 906 of 2000 was decreed against plaintiff No. 2 and it has attained finality. 8. The Court below after hearing both sides and on appreciation of the facts, arrived at a conclusion that as the defendants are denying the existence of suit schedule property with the description mentioned by the plaintiffs in their pleadings, as the suit is filed for declaration of title, a thorough enquiry is required in the matter. Accordingly, it was felt essential to know whose description of the suit property is correct. Therefore, only to note down the physical features and boundaries of disputed property, Advocate Commissioner was appointed. It is this order under challenge by the defendant No. 1. 9. Order XXVI Rule 9 of Civil Procedure Code deals with appointment of Commissions to make local investigations. The object of appointment of Commissioner is not to collect evidence, but only to elucidate the matter which are local in character and which can only be done by local investigation at this part. In a suit where there is a boundary dispute, the parties are at liberty to get such disputes resolved through the official surveyors instead of approaching the Court. But here in the case on hand, in the first round of litigation, the plaintiffs have lost the original suit filed for perpetual injunction and in the appeal, the plaintiffs have obtained permission from the appellate Court to file a comprehensive suit for declaration of title and recovery of possession by withdrawing the said appeal. As discussed above, in the original suit, evidence on both sides was adduced and it was closed on 20.11.2015 and ever since 27.11.2015, the suit is being adjourned only for advancing arguments. At that stage, on 04.12.2015, after closure of the evidence, when the suit is being posted for arguments, at a belated stage, the present application is filed in a suit for declaration of title and recovery of possession. 10. The law is well settled that an application for local inspection cannot be allowed when it is filed after the evidence on both sides is closed and the suit is adjourned for arguments, since it amounts to filling up the lacunae in the evidence. 10. The law is well settled that an application for local inspection cannot be allowed when it is filed after the evidence on both sides is closed and the suit is adjourned for arguments, since it amounts to filling up the lacunae in the evidence. Even in case of allegations of encroachment by the defendant No. 1 on to the suit property, measurement of plot by Survey Commissioner is necessary and the applicant is bona-fide if it is not filed before closure of evidence on both sides, the Court has to consider whether such application is necessary to elucidate the matter which are local in character or whether such facts can be appreciated with the help of evidence on record. As discussed above, this application is filed at a belated stage for local investigation which would mean an investigation for ascertaining certain facts on the ground because the defendants have been denying the boundaries or the plaintiffs have been alleging that during pendency of first round of litigation, the defendants have illegally occupied the suit plot and raised structures. This is a matter that can be proved even without the appointment of Advocate Commissioner with other material evidence. It is not that the plaintiffs have initially filed this suit only and they are not aware of the fact that they lost the possession. In the case on hand, initially, O.S. No. 870 of 2000 was filed. The plaintiffs have lost the suit. They have also filed A.S. No. 251of 2006 and withdrawn that appeal as per the orders in I.A. No. 599 of 2007 with a liberty to file a fresh comprehensive suit against defendant No. 1. 11. In the given facts and circumstances of the case, the appointment of Advocate Commissioner to note down the physical features and boundaries of suit schedule property at this belated stage after closure of evidence on both sides when the suit is adjourned for arguments is absolutely unwarranted and it is not the case that the trial Court has appointed the Advocate Commissioner on its own only to assist the Court to elucidate the matter in dispute by way of local investigation. Therefore, for the reasons stated above, viewed from any angle, the order impugned suffers with infirmity, warrants interference by this Court and is liable to be set-aside. 12. In the result, the Civil Revision Petition is allowed. Therefore, for the reasons stated above, viewed from any angle, the order impugned suffers with infirmity, warrants interference by this Court and is liable to be set-aside. 12. In the result, the Civil Revision Petition is allowed. The impugned order dated 01.06.2017 in I.A. No. 1028 of 2015 in O.S. No. 2616 of 2007 is hereby set-aside. Considering the facts of the case, as the original suit is being adjourned for arguments ever since 27.11.2015 onwards, the trial Court is hereby directed to expedite the disposal of the original suit and shall make every endeavour for disposal of the same within a period of three (3) months from the date of receipt of copy of this order. Both the parties to the suit shall cooperate with the trial Court for expeditious disposal of the original suit as directed. In the circumstances of the case, there shall be no order as to the costs. 13. Consequently, Interlocutory Applications, if any pending, shall stand closed.