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2022 DIGILAW 740 (AP)

Dood Basha v. Moula Sab

2022-08-08

BATTU DEVANAND

body2022
ORDER : 1. This Civil Revision Petition has been filed aggrieved by the order, dated 07.04.2022 in I.A.No.79 of 2021 in A.S.No.4 of 2018, on the file of the II Additional District Judge, Kurnool at Adoni. 2. Heard Sri G. Ramachandra Reddy, learned Counsel for the Petitioners and Sri Maheswara Rao Muncheam, learned counsel for the Respondents and perused the material available on record. 3. The facts of the case are that the petitioners herein are the respondents in A.S.No.4 of 2018 on the file of the II Additional District Judge, Kurnool at Adoni, which was preferred by the 1st respondent herein (i.e., appellant in A.S.No.4 of 2018) against the decree and judgment, dated 06.01.2018 in O.S.No.153 of 2010 on the file of the Senior Civil Judge, Adoni, filed by the 1st respondent herein for permanent injunction. The petitioners herein filed I.A.No.79 of 2021 in A.S.No.4 of 2018 under Order 26 Rule 9 C.P.C. R/w Sec.151 of C.P.C. seeking to appoint an Advocate Commissioner to visit the petition schedule property and to note down the physical features and file his report. The first appellate Court after careful perusal of the entire material available on record dismissed the said application. Aggrieved by the same, the present Civil Revision Petition is filed. 4. Learned counsel for the petitioners submits that the Court below failed to assign proper reasons and dismissed the petition only on assumptions that it is nothing but procuring additional evidence. The Court below should have observed that the Respondents herein filed suit for permanent injunction, which is dismissed and against which, the present appeal lies. The suit is of the nature of permanent injunction, wherein, the question of possession should be the paramount issue basing on the prima facie title. Hence, for adjudication of the same, the appointment of Advocate Commissioner is just and necessary. The Court below should have considered that the appeal is nothing but continuation of the suit, wherein either party is entitled to file petition under Order 26 Rule 9 CPC. The Court below should have observed that the recording of the physical features (i.e.) existence of hut and standing crop are to be noted down. Therefore, he prayed to allow the Civil Revision Petition. 5. The Court below should have observed that the recording of the physical features (i.e.) existence of hut and standing crop are to be noted down. Therefore, he prayed to allow the Civil Revision Petition. 5. Learned counsel for the Respondents submits that the Court below rightly dismissed the application filed under Order 26, Rule 6 of C.P.C. He contends that the suit was filed in the year 2010 and was dismissed on 06.01.2018 and immediately the appeal was filed. Either during the pendency of the suit or during four years of pendency of the appeal, the petitioners have not made any efforts and thought of getting an Advocate Commissioner appointed. He further contends that in a suit for a permanent injunction, the vital and important issue is whether the plaintiff is in possession of the schedule land. If at this stage an Advocate Commissioner is appointed and filed his report, it would certainly amount to introducing additional evidence, which is ordinarily not permissible unless the proper application is made under Order 41 Rule 27 of C.P.C. Therefore, he prayed to dismiss the present Civil Revision Petition. 6. Having heard both the learned counsel and upon perusal of the material available on record, on careful perusal of the order of the Court below, it is observed that as seen from the affidavit filed in support of the petition, the petitioners did not mention that the appointment of the Commissioner is necessary to note down the physical features and that the land of Damodara Reddy is two feet higher than the suit land and that the land in Sy.No.241/A1 and 241/A constitute a single plot and the existence of hut in the schedule property. Thus during the course of arguments, the petitioners have made improvements regarding the reliefs sought in the petition. It is also observed by the Court below that thus, a reading of Order 41, Rule 27 discloses that a party is not entitled to produce additional evidence as a matter of right in the appeal, and only in exceptional circumstances as envisaged under Order 41, Rule 27, he is entitled to produce additional evidence. The Court below also observed that the petitioners failed to satisfy the conditions envisaged under Order 41 Rule 27 of C.P.C. So, the petitioners are not entitled to the relief as prayed for. 7. The Court below also observed that the petitioners failed to satisfy the conditions envisaged under Order 41 Rule 27 of C.P.C. So, the petitioners are not entitled to the relief as prayed for. 7. In Penta Urmila vs. Karukola Kumaraswamy, (2005) 2 ALD 130 = (2005) 1 ALT 811 , this High Court at para No.5 held as extracted hereinunder: “5. The above principles have to be applied to the facts of this case. The respondents 1 to 6 and another filed suit in 1988 for injunction. The suit was dismissed in December 2001 and the appeal was filed immediately thereafter in 2002. Either during the pendency of the suit or during the two years of the pendency of the appeal before the learned Senior Civil Judge, Sompeta, the plaintiffs never thought of getting Advocate Commissioner appointed for verifying the features of the suit schedule land and defendants land with reference to FMB or other revenue records. In all probability, they entirely depended on the evidence they had let in the trial of the suit. They lost the suit, but still they were presumably confident of convincing the appellate Court with the evidence on record. At a later point of time when the appeal was coming for hearing, they filed I.A.No.87 of 2004 to bring in a report of advocate Commissioner noticing features of the land with reference to FMB.” 8. The above said decision is squarely applicable to the present facts and circumstances of the case, as the present subject suit was filed in the year, 2010 and was dismissed on 06.01.2018 and immediately the appeal was filed. Either during the pendency of the suit or during four years of pendency of the appeal, the petitioners have not made any efforts and thought of getting an Advocate Commissioner. 9. In view of the facts and circumstances of the case, in our considered view, the learned II Additional District Judge, Kurnool at Adoni, rightly dismissed the application filed by the petitioners under Order 26, Rule 9 CPC. Therefore, there are no merits in the present Civil Revision Petition to interfere into the order, dated 07.04.2022 in I.A.No.79 of 2021 in A.S.No.4 of 2018 and as such, it is liable to be dismissed. 10. Accordingly, this Civil Revision Petition is dismissed. 11. There shall be no order as to costs. As a sequel, miscellaneous petitions, if any pending, shall stand closed.