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2022 DIGILAW 1192 (AP)

Sabbella Lakshmi v. Mohammad Subham Ali

2022-11-02

B.S BHANUMATHI

body2022
ORDER 1. This civil revision petition, under Article 227 of the Constitution of India, is directed against the order, dated 18.03.2020, of the learned II Additional District Judge, Eluru, West Godavari District, dismissing I.A.No.244 of 2020 in O.S.No.84 of 2014 filed under Order XXVI Rule 9 read with Section 151 CPC seeking to appoint an Advocate Commissioner to measure the property of the plaintiff and defendants 1 and 5 with reference to the title deeds of the parties and FMB so as to ascertain and locate the extent of the site of the petitioner wrongfully encroached by the defendants. 2. Heard Sri C.Venkaiah, learned counsel for the revision petitioner/plaintiff and Sri Kambampati Ramesh Babu, learned counsel for the respondent/defendant No.1 and Sri Paturi Srinivas Chowdary, learned counsel appearing for the 5th respondent. Though notices were served on respondent Nos.2 to 4, they have not appeared. 3. The facts, in brief, are as follows: The revision petitioner/plaintiff filed the present suit for recovery of possession of schedule land of an extent of Ac.0.15 cents and for mandatory injunction to direct the defendants 1 to 5 to restore the irrigation bodi and its bunds in the schedule land from South to North and for other reliefs. The defendants filed written statement. The suit is coming up for trial. The defendants 1 to 5 wrongfully encroached the site covered by the bodi, its eastern bund and also the land of the plaintiff illegally. Hence, the plaintiff filed the suit for recovery of possession of the land wrongfully encroached by the defendants 1 to 5, which is approximately Ac.0.15 cents. The defendants not only encroached the schedule land but also closed the irrigation bodi running in the schedule land. Hence, the relief of mandatory injunction was also sought. The plaintiff also filed an application in I.A.No.875 of 2016 seeking appointment of an advocate commissioner. The trial Court allowed the said petition and appointed an advocate commissioner. The commissioner visited the suit schedule land, got measured the property in occupation of the petitioner and filed his report without measuring the properties of the defendants and also the land of the petitioner in R.S.No.747/2 of Eluru Block, Venkatapuram Panchayat. The commissioner was also examined as CW1. He was cross-examined by the counsels for the plainitff and the 5th defendant. The commissioner was also examined as CW1. He was cross-examined by the counsels for the plainitff and the 5th defendant. (b) According to the revision petitioner/plaintiff, the commissioner did not execute the warrant as per the directions of the trial Court. No survey number or title deeds were referred. The commissioner did not ascertain and measure the total extent of the sites in R.S.No.747 and 747/2. He did not collect the lay out plan in respect of the land of the defendants. Further, the report and sketch filed by the advocate commissioner do not disclose the actual location of the schedule property. In fact, the plaint schedule property is from South to North and on the East of the plaint schedule property, the land of the plaintiff is located and on the West of the schedule property, the sites of the defendants are located. Therefore, the purpose of appointment of advocate commissioner is not at all served and the report of the commissioner is no way useful to decide the case on merits. Without measuring the entire properties of the parties, it is not possible to locate the extent of the land encroached. If the trial Court proceeds on the basis of the said report of the commissioner, which is improper and incomplete, the plaintiff would be deprived of his valuable site of an extent of Ac.0.15 cents worth not less than Rs.75,00,000/-. It is, therefore, just and necessary to appoint another advocate commissioner to measure the properties of the parties with reference to the title deeds and F.M.B so as to locate the extent of property encroached by the defendants. 4. The 1st defendant filed counter denying the allegations of the plaintiff and contending that neither the plaintiff nor the defendants filed any work memos before the advocate commissioner. The objections, if any, by the plaintiff after closure of the report of the commissioner and evidence of the witnesses is nothing but abuse of process of court. After elaborate trial, the plaintiff came up with this application seeking appointment of the commissioner for the second time only to protract the case. The earlier commissioner filed his detailed report by executing the warrant by taking assistance of the Mandal Surveyor and got measured the lands of the parties. There is no need to appoint another advocate commissioner for the second time. The petition is liable to be dismissed. 5. The earlier commissioner filed his detailed report by executing the warrant by taking assistance of the Mandal Surveyor and got measured the lands of the parties. There is no need to appoint another advocate commissioner for the second time. The petition is liable to be dismissed. 5. On merits, the trial Court dismissed the petition of the plaintiff holding that the attempt of the petitioner is only to gather further evidence and to fill up the lacunae in the evidence already adduced, and therefore, appointment of an advocate commissioner for the second time is not warranted at this belated stage. 6. Aggrieved thereby, the plaintiff filed this revision. In the grounds of revision, the revision petitioner/plaintiff, while reiterating his pleaded case, raised mainly the following grounds: i) The impugned order of the trial Court is unsustainable either in law or on facts; ii) The trial Court ought to have allowed the petition in view of the objections of the plaintiff to the report of the earlier commissioner; iii) The trial Court erred in accepting the contention of the defendants that advocate commissioner cannot be appointed to gather evidence; iv) The earlier commissioner did not execute the warrant as per the directions of the trial court; v) The earlier commissioner did not refer any survey numbers and title deeds of the parties, in order to ascertain the total extent of land in R.S.No.747 and 747/2; vi) He did not collect the layout plan for the sites of the defendants and also did not mention the survey numbers of the sites; vii) The report of the commissioner did not disclose the actual location of the schedule property, and hence, the purpose of appointment of commissioner is not served, and therefore, the report is not useful for deciding the case; viii) In case, the trial court proceeds in the matter on the basis of the improper and incomplete report of the commissioner, the plaintiff would suffer loss; ix) The trial Court ought to have seen that the commissioner did not apply his mind and did nothing and left everything to the fate of the parties, and that therefore, if the order impugned is allowed to stand, the plaintiff would be put to great injustice. Learned counsel, in support of his contentions, also placed reliance on a decision of this Court in Tadi Suryanarayana Reddy v. Mylavarapu Rama Venkata Krishna Narasimha Rao, 2020 (1) ALD 512 (AP). 7. The revision petitioner/plaintiff vehemently contends that the Commissioner has failed to execute the warrant in terms of the directions given therein, i.e., to measure the properties of plaintiff and defendants, note down the physical features, existence of bodi, taking work memos and answers, prepare rough sketch by taking the assistance of Surveyor, if necessary, and also to measure the property with the help of title deeds of parties and F.M.B produced by plaintiff or Surveyor. In this regard, learned counsel for the revision petitioner contends that the commissioner has mainly failed to measure the properties with reference to the title deeds of the parties, as is admitted by him in the cross-examination. He further submitted that the commissioner has not collected FMBs of Survey Nos.499 and 496 as admitted by him in his cross-examination and further he admitted that he did not measure R.S.No.749 and also that R.S.Nos.496 & 499 are not adjoining to the land covered by R.S.No.747. Therefore, he contended that the trial Court erred in dismissing the petition for fresh survey by another advocate, since the earlier Commissioner has stopped his practice in the local jurisdiction of the courts where he earlier appeared and shifted his practice to another place. 8. On the other hand, it is contended by the learned counsel for the 1st respondent that the plaintiff failed to object the report of the commissioner and no written objections were filed immediately after the submission of report or even after the cross-examination of the commissioner, and it is only at the fag-end of the case, at the stage of arguments, basing on the objections filed by the 5th defendant, this petition was filed, and therefore, there are no bona fides on the part of the petitioner in filing this petition and it is only a case of protracting the matter. 9. Learned counsel for the 5th respondent adopted the arguments of the revision petitioner. 10. As can be seen from the record, the report was filed by the Commissioner in November 2017 and he executed the warrant in the presence of all parties and their advocates and he was also assisted by a Surveyor, as directed. 9. Learned counsel for the 5th respondent adopted the arguments of the revision petitioner. 10. As can be seen from the record, the report was filed by the Commissioner in November 2017 and he executed the warrant in the presence of all parties and their advocates and he was also assisted by a Surveyor, as directed. He stated in his cross-examination that he perused the title deed of the plaintiff while executing the warrant. He mentioned that he did not refer the title deed in his report and he did not enclose the title deeds to his report. The witness was cross-examined on 20.08.2019. However, the petition was filed only on 27.02.2020. At no stage, the petitioner raised objection against the report of the commissioner. If at all, the petitioner has any merit in the contention; steps would have been taken at the earliest point of time. Since the report of the commissioner has exhaustively dealt with and he was thoroughly cross-examined, there is no need to appoint another commissioner. Except pointing out the statements in the cross-examination of the commissioner, nothing is shown as to how the report of the commissioner is not sufficient to prove the case of the plaintiff. As such, this Court does not see any merit in the revision to interfere with the order impugned. 11. Since the trial Court made an observation that the advocate commissioner cannot be appointed to gather the evidence by the parties, it is submitted that such observation is uncalled for at this juncture, since the commissioner was already appointed. However, the relief is declined not merely on that ground. As such, the argument in this regard does not help the revision petitioner. 12. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. Miscellaneous Petitions, if any, pending shall stand closed.