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2022 DIGILAW 852 (AP)

Kommalapati Madhavi v. Byrapuneni Vijaya Lakshmi

2022-09-09

BANDARU SYAMSUNDER

body2022
ORDER: This Civil Revision Petition is filed by the petitioners/R1, R2/D1, D2 under Article 227 of Constitution of India against the orders passed by the learned III Additional District Judge, Ongole, in I.A.No.269 of 2013 in O.S.No.130 of 2011 wherein and whereby the learned trial Judge allowed the petition filed by R1, R2/plaintiffs under Order XXVI Rule 9 read of Civil Procedure Code (in short “CPC”) and appointed an advocate - commissioner for the purpose of localization of the land bearing Sy.No.284 to an extent of Ac.2.68 cents. 2. The case of R1, R2/petitioners/plaintiffs in brief before the trial Court is that they filed suit for cancellation of agreement of sale –cum- General Power of Attorney dated 07.06.2010 executed by D3 to D8 in favour of petitioners/D1, D2 and for permanent injunction in respect of plaint schedule property. They submit that they are relying on sale deed dated 10.02.2010 under which they said to be purchased plaint schedule property and they have been enjoying the same, whereas petitioner/D1, D2 have been contending that they are the owners of suit schedule property. They submit that the petitioners are contending that they are the owners of the suit property, due to that, it is necessary for them to locate property purchased by them and also to locate the property purchased by petitioners/D1, D2. It is the contention of R1, R2/plaintiffs that if advocate commissioner is appointed, he will localize the property purchased by them and also the property purchased by petitioners/D1, D2 and as both parties are claiming the suit property, it is necessary to appoint an advocate commissioner to identify the property to know whether the property purchased by them and property purchased by the revision petitioners/R1, R2 is one and the same and whether it is in single plot which helps the Court to dispose of the suit effectively. They pray to appoint an advocate commissioner to measure Ac.2.68 cents of land in Sy.No.284 and to fix the boundaries with reference to the sale deeds of both sides. 3. For which revision petitioners/R1, R2 filed counter denying averments in the affidavit of R2/2nd petitioner/2nd plaintiff. It is the contention of revision petitioners that R1, R2 are not in possession and enjoyment of plaint schedule property as they are only the general power of attorney holders and they have no title over the plaint schedule property. 3. For which revision petitioners/R1, R2 filed counter denying averments in the affidavit of R2/2nd petitioner/2nd plaintiff. It is the contention of revision petitioners that R1, R2 are not in possession and enjoyment of plaint schedule property as they are only the general power of attorney holders and they have no title over the plaint schedule property. They submit that vendors of R1, R2 also have no title over the plaint schedule property, who colluded with R1 and R2, fabricated General Power of Attorney – cum – sale deed dated 10.02.2010 without delivery of possession. They further submit that R1 and R2 cannot file petition to locate their property through an advocate commissioner, which is against their pleadings in the suit and petitioners could not succeed in their Civil Miscellaneous Application filed before this Court, now came up with a petition to appoint an advocate commissioner only to drag on the proceedings. It is also the contention of revision petitioners that R1, R2 can get Mandal Surveyor appointed by paying required challan to measure their property for which, there is no need to appoint an advocate commissioner for survey the land to identify the property and to localize the plots. They pray to dismiss the petition. 4. The learned trial Judge after hearing both sides, allowed the petition filed by R1 and R2/plaintiffs ordered for appointment of advocate commissioner for the purpose of localization of the land bearing Sy.No.284 to an extent of Ac.2.68 cents. 5. Aggrieved by the orders passed by learned trial Judge, the petitioners have filed present revision petition stating that orders passed by Court below are illegal, irregular and vitiated by incorrect exercise of jurisdiction vested in it. They submit that appointment of an advocate commissioner by the trial Court with an observation that both parties disputing plaint schedule property and localizing the property is necessary, is not legally correct and R1 and R2 are not aware where the plaint schedule property is situated and now they intended to identify the said property with the assistance of Court, which is impermissible under law. They prayed to allow the revision petition and dismiss the petition filed by R1 and R2/plaintiffs seeking for appointment of an advocate commissioner. 6. I have heard both sides. 7. They prayed to allow the revision petition and dismiss the petition filed by R1 and R2/plaintiffs seeking for appointment of an advocate commissioner. 6. I have heard both sides. 7. The learned counsel for the revision petitioners mainly contended that in a suit filed by R1, R2 for cancellation of agreement of sale – cum – General Power of Attorney dated 07.06.2010 and seeking relief of permanent injunction, they cannot seek appointment of an advocate commissioner as their claim in the plaint is that R1, R2/plaintiffs are claiming the property under sale deed dated 10.02.2010 said to be executed by Mr.M.Hanumantha Rao, M. Venkata Siva Lakshmi, with specific boundaries, but now they intend to appoint an advocate commissioner to localize the land which they said to be purchased, which is not permissible under law. He further submits that advocate commissioner cannot be appointed when there is no dispute about identity of property and specific boundaries are mentioned in the sale deed of R1 and R2/plaintiffs. He relied on following precedent law: (1) Arvind Kumar Agarwal V. Legend Estates (P) Ltd., rep. by its Managing Partner, Kokapet village, Ranga Reddy District, 2015(2) ALT 484 (SB) wherein this Court held at para 4, which reads as under: “A perusal of the plaint shows that the petitioner has given specific boundaries to his property. Therefore, the initial burden lies on him to prove the identity of his property by adducing his own evidence. It is only after both the parties adducing their respective evidence, if any ambiguity prevails with reference to the identity of the property, that the Court on its own or on the application of either party, may appoint an Advocate-Commissioner. In my opinion, in a case of this nature, an application for appointment of an Advocate-Commissioner at the threshold itself cannot be entertained as the same will amount to gathering evidence.” (2) Subhaga and Others v. Shobha and Others, (2006) 5 SCC 466 , wherein it is held that when specific boundaries are given and property is identified by the petitioners even if there is any discrepancy with regard to extent the boundaries should prevail for which it is not necessary to survey all adjacent lands to find out where there was any encroachment made in the property concerned. Hence, he prays to allow the revision petition. 8. Hence, he prays to allow the revision petition. 8. Learned counsel for the respondents mainly contended that on perusal of pleadings and evidence adduced on both sides, which clearly show that there is a dispute with regard to identity of the property, due to that R1 and R2 came up with a petition to appoint advocate commissioner, which is rightly allowed by the learned trial Judge and no interference is required in the orders passed by the trial Court. He relied on following decisions: (1) Badana Mutyalu and another Vs. Palli Appalaraju, 2013 SCC Online AP 625 : 2013(6) ALT page 26, wherein it is held at paras 18, 19 and 20, which reads as under: “18. This decision of the Division bench was followed in Savitramma and another v. B. Changa Reddy. In that case, it was held: “16. The question as to when a Commissioner could be appointed should be within the wide discretion of the trial Court, but it cannot be said that no commissioner could be appointed before the issues are framed or the evidence is led…………” 19. So it has been held that either party to the suit could have a Commissioner appointed even before the trial. In view of the above decisions, I hold 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. The party against whom the report may have gone may choose to adduce evidence in rebuttal. 20. In Sanjay’s case (supra), cited by the learned Counsel for the petitioners, the Court held that an Advocate Commissioner cannot be appointed to submit a report recording actual possession of the disputed property. In the present case, however, the advocate commissioner is appointed to localize the disputed ABCD portion with reference to the title deeds of both the parties with the assistance of a qualified surveyor and not to determine possession of any party. Therefore, the said decision has no application. I am of the view that there is no error of jurisdiction committed by the Court below in the impugned order warranting interference by this Court under Article 227 of the Constitution of India.” Hence, he prays to dismiss the revision petition. 9. Therefore, the said decision has no application. I am of the view that there is no error of jurisdiction committed by the Court below in the impugned order warranting interference by this Court under Article 227 of the Constitution of India.” Hence, he prays to dismiss the revision petition. 9. Now, the issue that emerges for consideration by this Court is: "Whether the order under challenge is sustainable, tenable and whether the same warrants any interference of this Court under Article 227 of Constitution of India?" 10. POINT: Before going to the merits of the case, it would be beneficial to quote Order XXVI Rule 9 CPC, which reads as under: “Order 26 Rule 9 – Commissions to make local investigations: 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: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” 11. On perusal of above referred provision, which makes it clear that Commissioner can be appointed for local investigation in any suit for the purpose of elucidating any matter in dispute to arrive just conclusion in the suit. 12. The Hon’ble Apex Court in Subhaga and Others v. Shobha and Others (referred supra) while dealing special leave petition to appeal and after considering the pleadings of both sides held that when property can be identified either by boundaries or by any other specific description and if there is any discrepancy with regard to extent, the boundaries should prevail. In the said decision, Hon’ble Apex Court never held that commissioner cannot be appointed when there is a dispute with regard to identity of the property. The ratio laid down in the said decision is not applicable to the facts of the present case. 13. In Arvind Kumar Agarwal V. Legend Estates (P) Ltd., rep. In the said decision, Hon’ble Apex Court never held that commissioner cannot be appointed when there is a dispute with regard to identity of the property. The ratio laid down in the said decision is not applicable to the facts of the present case. 13. In Arvind Kumar Agarwal V. Legend Estates (P) Ltd., rep. by its Managing Partner (referred supra) this Court held that commissioner can be appointed only after both sides adducing their respective evidence and when there is any ambiguity prevails with regard to the identity of the property, advocate commissioner can be appointed and held that an application for appointment of an advocate commissioner at the threshold itself cannot be entertained as the same will amounts to gathering evidence. In the said decision also, this Court held that when there is a discrepancy with regard to the identity of the property after adducing evidence on both sides, there is no bar for appointment of advocate commissioner, if trial Court finds that there is ambiguity prevails with regard to identity of property. In Badana Mutyalu and another Vs. Palli Appalaraju (referred supra) this Court also relying on the ratio laid down by Division Bench in Savitramma Vs. B. Change Reddy, 1988(1) ALT 353 held that where there is a controvery 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 to go to trial prepared and party against whom the report may have gone may choose to adduce evidence in rebuttal. 14. The Hon’ble Apex Court in M.P. RAJYA TILHAN UTPADAK SAHAKARI SANGH MARYADIT, PACHAMA, DISTRICT SEHORE AND OTHERS Versus M/S. MODI TRANSPORT SERVICE, 2022 Live Law (SC) 471 held that the commissioners' reports are 'non-adjudicatory in nature', and the courts adjudicate upon the rights of the parties. It is only an opinion or noting, as the case may be with the details and/or statement to the court the actual state of affairs. Such a report does not automatically form part of the court's opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. 15. Such a report does not automatically form part of the court's opinion, as the court has the power to confirm, vary or set aside the report or in a given case issue a new commission. 15. In the present case, suit is filed by R1, R2 against revision petitioners and R3 to R8 herein for cancellation of General Power of Attorney – cum – Agreement of sale dated 07.06.2010 executed by R3 to R8 in favour of revisions petitioners and also sought for relief of permanent injunction against revision petitioners in respect of land to an extent of 30 cents and 52 cents out of Ac.1.02 cents in Sy.No.284, wherein revision petitioners/D1, D2 have filed written statement denying the right and title of R1, R2 over the plaint schedule property and also claimed that they purchased land to an extent of 213 Gadis 12 square feets under sale deed cum General Power of Attorney for valid consideration from their vendors and they have got right to sell the property on 07.06.2010 and they also stated that boundaries shown in their title deed are correct and it is false to say that their property is situated elsewhere. It is not in dispute that both sides have adduced evidence and matter is coming up for arguments before the trial Court. Then R1, R2/plaintiffs have filed petition to appoint an advocate commissioner on the ground that there is a dispute between themselves and revision petitioners/D1, D2 about the identity of the property, due to that, localizing the land in Sy.No.284 is necessary. The learned trial Judge after considering the ratio laid down in the decisions relied on by both sides, observed that both parties are raising dispute over the plaint schedule mentioned property and even the localization of the property and in these circumstances, to give an effective adjudication about the rights of both parties, it is just and necessary that the plaint schedule property has to be located in respect of their documents and also observed that even if an advocate commissioner is appointed, no prejudice would be caused to the revision petitioners/D1, D2 who also can lead evidence in support of their claim, and the Court below allowed the petition. The trial Court is of the opinion that appointment of an advocate commissioner is necessary to determine the real question in controversy. 16. The trial Court is of the opinion that appointment of an advocate commissioner is necessary to determine the real question in controversy. 16. After considering the nature of dispute between the parties and their pleadings and evidence adduced on both sides, which also filed as additional material paper as per I.A.No.1 of 2022 by the learned advocate for the revision petitioners, which contains evidence of Mr.M.Hanumantha Rao, (P.W.3) vendor of R1 and R2/plaintiffs, this Court is of the opinion that there is no error of jurisdiction committed by the Court below in the impugned order warranting interference by this Court under Article 227 of Constitution of India. 17. The Civil Revision Petition is accordingly dismissed. No order as to costs. Consequently, miscellaneous petitions pending if any, shall stand closed.