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2023 DIGILAW 1220 (AP)

Kamma Suresh Babu S/o Venkateswarlu v. Manne Venkata Seshaiah S/o Shri Ramulu

2023-08-18

K.MANMADHA RAO

body2023
ORDER : 1. This Civil Revision Petition is preferred against the order, dated 15.02.2023 passed in I.A. No. 46 of 2019 in O.S. No. 515 of 2018 on the file of the Principal Senior Civil Judge, Ongole (for short “the Court below”). 2. The impugned I.A. No. 46 of 2019 in O.S. No. 515 of 2018 was filed by the petitioners/plaintiffs under Order 26 Rule 9 and Section 151 of CPC to appoint an Advocate Commissioner to inspect the plaint plan property, to note down the physical features, to take photos, to take measurements if necessary as per work memos submitted by the parties and to submit a report. 3. The case of the petitioners is that the petitioners and the respondents are neighbours. There is a Rasi Nadava (passage) in between their properties and there were some disputes in between them. The petitioners got issued notice dated 2.12.2017 to the respondents and others, particularly, Ongole Municipal corporation, for getting laid concrete cement road in the passage. Thereafter, the defendants got issued reply notice dated 7.12.2017 with a false claim by mentioning the suit in O.S. No. 62 of 2007 on the file of I Additional Junior Civil Judge, Ongole filed by the 2nd defendant against the petitioners and others. The petitioners got issued rejoinder dated 18.12.2017 to the defendants advising the defendants to go through the partition deed dated 4.10.1957 and note that the existence of passage and by advising to remove the walls raised by the defendants. After construction of the walls blocking passage by the defendants, the petitioners do not have any access from the northern road and their legal right is infringed. Thereafter, the respondents got issued reply dated 20.12.2017 by reciting some old documents that too by suppressing the facts. The defendants have got lodged caveat petitions. Hence, the petitioners got issued a legal notice dated 12.2.2018 to the defendants by advising them to go through the old documents, particularly the sale deed dated 19.7.1992 by demanding the defendants to remove the walls put up by the defendants in the passage, and issue a no objection/request letter to the municipality for laying concrete cement road in the passage and dig canals on both sides of the road. Thereafter, the defendants also got issued reply notice dated 16.2.2018 in a provoking manner. The defendants got lodged caveat petitions. Thereafter, the defendants also got issued reply notice dated 16.2.2018 in a provoking manner. The defendants got lodged caveat petitions. Hence the petitioners/plaintiffs filed the suit to declare the passage (Rasi Nadava) as public passage to get removal the walls and gates put up the defendants to block the passage to restrain the defendants from creating hurdles for free usage of the passage, to compensate the loss caused to them etc., and thereafter their advocate advised to file a petition for appointment of an advocate commissioner to note down the physical features of the properties and the passage. Hence, the petitioners/ plaintiffs filed the impugned petition. After careful consideration and on perusing the entire material available on record, the trial Court has allowed the said petition without costs. Aggrieved by the same, the present civil revision petition came to be filed. 4. Heard Sri N. Madhava Rao, learned counsel appearing for the petitioners and Sri N. Krishna Murthy, learned counsel appearing for the respondents. 5. Learned counsel for the petitioners submits that the order of the trial Court is contrary to law and weight of evidence and probabilities of the case. He submits that the Court below gravely erred in allowing the impugned I.A. by appointing Advocate Commissioner to visit the suit schedule property and to note down the physical features of the suit schedule property; even though the issue involved in the suit which was already attained finality in earlier round of litigation. He further submits that the Court below miserably failed to understand the scope of Order XXVI Rule 9 of CPC in a suit for declaration, the burden lies on the plaintiff and he has to establish his case by filing documentary evidence and also by leading oral evidence. He further submits that the Court below miserably failed to understand the scope of Order XXVI Rule 9 of CPC in a suit for declaration, the burden lies on the plaintiff and he has to establish his case by filing documentary evidence and also by leading oral evidence. He mainly submits that the Court below failed to consider the decrees and judgments passed earlier by the competent Civil Courts between the parties in OS No. 160 of 2002 on the file of the Hon’ble IV Additional Junior Civil Judge, Ongole which was confirmed by the I Additional District Judge, Ongole in A.S. No. 9 of 2006 and in O.S. No. 62 of 2007 passed by the Hon’ble I Additional Junior Civil Judge, Ongole and those judgments and decrees attained finality and the same issue by appointing advocate commissioner is not permissible and the said facts were clearly mentioned in the written statement and also counter filed in IA No. 4 of 209 by the petitioners herein. He further submits that the Court below ought to have dismissed the said I.A. by saying that Advocate Commissioner should not be appointed for collection of evidence and also failed to give any reasons for allowing the petition. Hence, learned counsel requests this court to pass appropriate orders. 6. To support his contentions, learned counsel for the petitioners has relied upon an order of this Court in CRP No. 1705 of 2022, dated 5.12.2022, wherein this Court held that: “The object of local inspection under Order XXVI Rule 9 of CPC is to collect evidence at the instance of the party who 5 relies upon the same and which evidence cannot be taken in 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 of the Court appointed for a particular purpose. The report of the Commissioner within the suit shall form part of the record. The local investigation is the best way to find out the possession when there is dispute regarding identity of the property. Under the guise of local investigation, party who is making application will not be allowed to collect the evidence. The report of the Commissioner within the suit shall form part of the record. The local investigation is the best way to find out the possession when there is dispute regarding identity of the property. 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.” 7. Per contra, learned counsel for the 2nd respondent has filed counter affidavit denying all the allegations made in the petition and stated that the respondents herein preferred an appeal before the VII Additional District Judge vide A.S. No. 154 of 2017 and the same is pending. It is mainly stated that the relief sought for in the instant case and the relief sought for in O.S. No. 62 of 2007 on the file of I Additional Junior Civil Judge, Ongole are entirely different and the report of commissioner therein and the purpose for appointment of Commissioner in the instant suit varies. The report of the advocate commissioner aids to decide the dispute and no prejudice would be caused to the petitioners herein/defendants if the commissioner if s appointed to note down the physical features of the petition schedule property. 8. Learned counsel for the respondents has relied upon a decision of the High Court of Judicature, Telangana and Andhra Pradesh at Hyderabad reported in Bandi Samuel and another v. Medida Nageswara Rao, 2017 (1) ALD 582 wherein it was held that: In Bandaru Mutyalu Vs. Palli Appalaraju, it was 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 for that conclusion placed reliance upon Sanjay S/o Namdeo Khandare Vs. Saheb Rao Kachru Khandare; Ponnusamy Pandaram Vs. The Salem Vaiyappamalai Jangamar Sangam; Mahendranath Panda Vs. Purnanada & Others; C. Veeranna v. C. Venkatachalam and Savitramma v. B. Changa Reddy. 20. Saheb Rao Kachru Khandare; Ponnusamy Pandaram Vs. The Salem Vaiyappamalai Jangamar Sangam; Mahendranath Panda Vs. Purnanada & Others; C. Veeranna v. C. Venkatachalam and Savitramma v. B. Changa Reddy. 20. In Bandaru Mutyalu supra referring to the Division Bench expression of this Court in C. Veeranna supra, that was placed reliance by another Single Judge Bench expression of Savitramma supra that in turn placed reliance to the conclusion in saying there is no principle of law or rule or provision that in a suit for bare injunction, no commissioner can be appointed to measure and demarcate the property so also even at the initial stage before commencement of trial, leave about even an ex-parte advocate commissioner can be appointed as held by the Division Bench (supra) with no notice even required for such appointment, but for referring to Order XXVI Rule 18, requirement of notice only for execution of the warrant by the commissioner appointed even ex-parte and thereby, all depends upon the discretion of the Court from the factual matrix of each case of any necessity to consider either on the request of plaintiff or on the request of the defendant or defendants as the case may be. In Jammi Venkatakrishna Rao Vs. J.V.H. Ravindranath, commissioner was held to be appointed to note down existing physical features which is not fishing of information. In Jajala Mariadas and Another Vs. Bodhala Aroghyam , it was observed referring to the facts therein of the suit claim relating to perpetual injunction and recovery of possession by declaration of title by removal of the so called encroachment of 91 square feet out of that B schedule property and injunction restraining interference for delivery in saying plaintiff and defendant are neighbours and defendant said to have encroached that portion of the land belonging to the plaintiff. Evidence in this regard of encroachment would only be available on the spot and no amount of oral evidence would establish the fact and for that conclusion referred the earlier expressions in relation to the nature of lis and requirement of localization of the disputed property under encroachment or otherwise, where demarcation of the disputed property is involved it is a fit case for appointment of Advocate Commissioner, as held by the Apex Court in Haryana Waqf Board supra, and same was followed in Smt. Donadulu Uma Devi supra and there is no time limit for appointment of Advocate Commissioner as even an ex-parte Advocate Commissioner for localization and noting of physical features can be appointed at the time of filing suit and delay in filing is otherwise not a ground to negate. It was ultimately in saying evidence to prove allegation of encroachment is of a peculiar nature which is available on the spot and if Advocate Commissioner is not appointed grave prejudice would be caused and allowed that application. 21. Here in this case on hand, for the so called construction by encroachment of the suit lane concerned, there is no material reflected from the petition, counter and order of the lower Court to show what are the measurements of the lane and by what document and what is the encroachment that is made to measure and demarcate. Thereby it requires consideration afresh by the lower Court with reference to the law laid down in the expressions supra. 22. Having regard to the above, the revision petition is disposed of giving liberty to the plaintiff to file fresh petition within one week from the date of receipt of this order before the lower Court and lower Court is directed therefrom to receive counter, hear and dispose of the application on own merits with reference to any material relating to the length and width of the lane and if so the extent of the alleged encroachment by the defendants for the plaintiff if able to show to consider for appointment of Advocate Commissioner for its ascertainment by measurement and demarcation and noting of physical features. 9. 9. On hearing, this Court observed that, the suit in O.S. No. 515 of 2018 was filed for grant of following reliefs: (i) For declaring that the right of way on the passage (Rasi Nadava) from the times immemorial, as shown in the plaint plan from “X” point in Kothapatnam Road to “Y” point in Municipal Road, is a public passage. (ii) For declaring that the passage (Rasi Nadava) to an extent 128 Square Yards as mentioned in the Schedule and as shown between the Points “XI” & “Y1” in the plaint plan, is illegally encroached by the defendants. (iii) For granting Mandatory Injunction for removal of obstructions, viz. walls & gates put up by the defendants in the Passage (Rasi Nadava). (iv) For granting Permanent Injunction for restraining the defendants and their men from creating any hurdle with regard to peaceful enjoyment of the Passage (Rasi Nadava) and or the Road put up by the Municipal Corporation. 10. During pendency of the above suit, the petitioner/defendant No. 1 has filed the impugned I.A. under Order XXVI Rule 9 CPC for appointment of advocate Commissioner. This Court further observed that the petitioner No. 2 i.e. Kamma Venkateswarlu earlier filed a suit in O.S. No. 62 of 2007 on the file of I Additional Junior Civil Judge, Ongole for grant of declaration declaring the “N” marked Nadava is the common way for ingress and egress for the plaintiff into “A” series property and for defendants property and for consequential permanent injunction not to interfere with the plaintiff’s peaceful possession and enjoyment in “A” & “A1” marked portions and for mandatory injunction to restore the demolished wall between X1 and X2 with a width of 18 inches and length of 30 inches (1½ feet x 2½ feet) falling which the same may be done through process of the Court and for costs. The same was decreed with costs as prayed for. 11. Admittedly, the suit in O.S. No. 515 of 2018 was filed by the petitioners/plaintiffs for declaration, mandatory injunction, and permanent injunction and for compensation also. The contention of the petitioners/plaintiffs is that an appointment of advocate commissioner is necessary to proper and correct appreciation of issues involved, assess the evidence on record and to clarify any point which is of doubtful nature. Whereas the contention of the respondents/defendants is that the petitioners filed this impugned petition to prolong the matter. The contention of the petitioners/plaintiffs is that an appointment of advocate commissioner is necessary to proper and correct appreciation of issues involved, assess the evidence on record and to clarify any point which is of doubtful nature. Whereas the contention of the respondents/defendants is that the petitioners filed this impugned petition to prolong the matter. 12. On perusing the entire material available on record and on a plain reading of the above citations, this Court is of the opinion that, 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. 13. Having regard to the facts and circumstances of the case and on considering the submissions of both the learned counsels, this Court found no illegality or perversity in the order passed by the Court below. Finding no merit in the instant revision petition and devoid of merits and the same is liable to be dismissed. 14. Accordingly, the Civil Revision Petition is disposed of. However, the petitioner, if at all any objections, he is at liberty to raise his objections before the Advocate Commissioner at the time of conducting examination and the Advocate Commissioner has to answer the objections raised by the petitioner. Further, the trial Court is directed to examine the objections raised by the petitioner before the Advocate Commissioner and answers given by the Advocate Commissioner and conclude the trial in the suit. There shall be no order as to costs. 15. As a sequel, miscellaneous applications pending, if any, shall also stand closed.