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Andhra High Court · body

2022 DIGILAW 1340 (AP)

Gamidi Koteswar Rao, S/o Peda Venkata Rao v. Gorle Rama Ratnam, W/o Ramu

2022-11-21

SUBBA REDDY SATTI

body2022
ORDER : Plaintiff in the suit filed the above revision against the order dated 06.09.2022 in I.A.No.725 of 2021 in O.S.No.242 of 2012 on the file of the Senior Civil Judge, Vizianagaram. 2. Revision petitioner/Plaintiff filed the suit O.S.No.242 of 2012 against the respondents/defendants to eject them from the plaint schedule property and to deliver vacant possession of the same. The schedule property was described in the plaint as Zeriothi Dry land of an extent of Ac.0-34 cents in Sy.No.79/3 of Malliveedu Panchayat and Revenue, L.Kota Mandal, Vizianagaram District. 3. In the plaint, plaintiff contended inter alia that he purchased the property under registered sale deed dated 23.05.2011 from the defendants 7 and 8; that 7th defendant suppressed the fact and alienated the property; that the schedule property is in possession and enjoyment of defendants 1 to 6; that plaintiff came to know about the same, got issued legal notice to the defendants 1 to 4 to vacate the schedule property within 30 days; that even after receipt of the notice, defendants 2 to 4 did not vacate the schedule property and as such, plaintiff filed the suit for the relief stated supra. 4. 4. 1st defendant filed written statement and contended inter alia that originally one Kolli Satyanarayana, son of Yerrayya @ Yerri Naidu purchased the schedule property under a registered sale deed dated 17.06.1968 from Kolli Gangunaidu and his minor sons; that by the date of purchase from the said Kolli Satyanarayana, a rice mill in the name and style of “Sri Satyanarayana Rice & Flour Mill” is existing in the schedule premises; that the said Rice & Flour Mill was established in the schedule premises in the year 1941-42 and is being run by the persons from time to time; that after getting necessary sanctions and approval the mill was established; that the said Kolli Satyanarayana settled the property in favour of 1st defendant by way of a registered sale deed dated 30.03.1970 and since then the defendant has been in possession and enjoyment of the property; that the defendant also constructed and established a Saw Mill in the name of “Satyanarayana Saw Mill” after obtaining permission from the concerned authorities and also constructed RCC slabbed residential house; that defendants 7 and 8 are no way related to Pediredla Suryakantham and they are having no right, title and interest over the schedule property to alienate the same to the plaintiff. 5. Pending the suit, I.A.No.725 of 2021 is filed by the defendants 1 to 4 to appoint an Advocate Commissioner to observe the physical features of the plaint schedule property and the constructions thereon and file report. 6. In the affidavit filed in support of the petition, it was contended inter alia that as per Ex.A-1 sale deed, the plaint schedule property is an agricultural dry land. Whereas, the case of the 1st defendant is that she got the plaint schedule property with Rice and Flour Mill under settlement deed dated 20.03.1970 and thereafter she constructed the Saw Mill and residential house in the plaint schedule property. To appreciate the evidence adduced on both sides and in order to decide the exact nature of the plaint schedule property, it is necessary to appoint an Advocate Commissioner for the relief stated supra. 7. 1st respondent/plaintiff filed counter and opposed the application. 8. By order dated 06.09.2022 the trial Court allowed I.A.No.725 of 2021 and Smt.E.Aruna Kumari, Advocate is appointed as Commissioner to note down the physical features of the plaint schedule property with the assistance of Mandal Surveyor. 7. 1st respondent/plaintiff filed counter and opposed the application. 8. By order dated 06.09.2022 the trial Court allowed I.A.No.725 of 2021 and Smt.E.Aruna Kumari, Advocate is appointed as Commissioner to note down the physical features of the plaint schedule property with the assistance of Mandal Surveyor. Aggrieved by the same, present revision is filed. 9. Heard learned counsel for the revision petitioner. 10. Learned counsel for the revision petitioner would contend that the application was filed at belated stage to collect the evidence. The suit is filed for ejectment and the plaintiff has to establish title over the plaint schedule property. In such an event, Advocate Commissioner’s appointment is nothing but to collect evidence and is not permissible and hence, prayed to set aside the order of the trial Court. Learned counsel for the respondents supported the order of the trial Court. 11. In the light of above contentions the point that arises for consideration is: Whether the appointment of advocate commissioner in the facts and circumstances of the case is sustainable? 12. 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: 13. The object of local inspection under Order XXVI Rule 9 of CPC is to elucidate information at the instance of the party who relies upon the same normally may not be available to the Court but could be taken only from its peculiar nature on the spot. When the evidence will necessitate that part of the evidence will elucidate a point, which may otherwise be left in doubt or ambiguity on record. Advocate Commissioner, in effect, is a projection to the Court appointed for a particular purpose. The report of the Commissioner within the suit shall form part of the record. Under the guise of local investigation, party who is making application will not be allowed to collect the evidence. The Court must keep these factors in mind while ordering or rejecting application for appointment of Advocate Commissioner basing on facts of each case. 14. 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. 15. 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 inter alia 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”. 16. 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”. 16. 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.” 17. 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.” 18. 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”. 19. A conspectus of the expressions referred to supra, Court has ample power to appoint an Advocate Commissioner to elucidate required information for the effective disposal of the suit. Of course, appointment of Advocate Commissioner does not facilitate the parties to collect evidence. Even after commissioner’s report it is always open to the parties to file objections and, in fact, the objections will be considered by the Court. 20. The case on hand, suit was filed for ejectment. Revision petitioner/Plaintiff has been contending that the schedule property is agricultural dry land whereas the 1st defendant has been asserting existence constructions in the plaint schedule property. 20. The case on hand, suit was filed for ejectment. Revision petitioner/Plaintiff has been contending that the schedule property is agricultural dry land whereas the 1st defendant has been asserting existence constructions in the plaint schedule property. Plaintiff is claiming title over the property by way of registered sale deed dated 23.05.2011 executed by the defendants 7 and 8. 1st defendant is claiming title over the property by virtue of a registered settlement deed dated 20.03.1970. When there is dispute with regard to nature of the property, it is necessary to appoint an Advocate Commissioner to note down the physical features. Advocate Commissioner cannot be appointed for the purpose of verifying as to who is in possession of the property. 21. Thus, in view of the discussion supra, this court doesn’t find any illegality in the order passed by Court below warranting interference by this Court exercising powers under Art 227 of the Constitution of India. The revision is liable to be dismissed. 22. Accordingly, this Civil Revision Petition is dismissed at the stage of admission. No costs. As a sequel, all the pending miscellaneous applications shall stand closed.