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2023 DIGILAW 1342 (AP)

B Ramadevi v. A. Ravindra Prasad

2023-09-23

K.MANMADHA RAO

body2023
JUDGMENT 1. The present civil revision petition is preferred by the petitioner aggrieved by the order dtd. 1/6/2016 passed in E.A.No.491 of 2015 in E.P.No.267 of 2008 in O.S No.193 of 1991 on the file of the Principal Junior Civil Judge, Anantapuramu (for short "the trial Court"). 2. The impugned application has been filed by the petitioner before the trial Court under Order 26 Rule 9 of CPC seeking appointment of Advocate Commissioner to note down the structures of E.P. schedule property and to bring all relevant documents concerning to it with the assistance of Mandal Surveyor. 3. Brief facts of the case are that earlier the petitioner filed E.A.No.491 of 2015 claiming right and title over the schedule mentioned property as he is absolute owner of the said property and the said property actually assigned by the Government in her favour and relevant records also mutated in that regard but the respondent who are nothing to do with the property and never in possession and enjoyment of property contended that the said property is a private land and made to litigate the same and for that purpose there is a requirement to appoint an Advocate Commissioner to make local inspection of the schedule property with the assistance of Mandal Surveyor so as to bring truth into the light and hence the petitioner filed the impugned I.A before the trial Court seeking appointment of advocate commissioner and the same was dismissed with costs. Aggrieved by the same the present civil revision petition came to be filed. 4. Heard Sri N. Aswartha Narayana, learned counsel appearing for the petitioner and Sri R. Dheeraj Singh, learned counsel appearing for the respondents. 5. On hearing, learned counsel for the petitioner submits that the order of the trial Court is contrary to law and the same is violated by the material irregularities in exercise of its jurisdiction. He further submits that the trial Court ought to have seen that the subject land is Government land and assigned in favour of the petitioner, therefore the trial Court can appoint the Advocate Commissioner to note down subject land along with boundaries, when the respondents claiming very same land under the guise of E.P proceedings. He further submits that the trial Court ought to have seen that the subject land is Government land and assigned in favour of the petitioner, therefore the trial Court can appoint the Advocate Commissioner to note down subject land along with boundaries, when the respondents claiming very same land under the guise of E.P proceedings. He further submits the trial Court ought to have seen that, no right should be affected to either of the parties, if the Advocate commissioner visited the schedule property and made inspection and if file final report. He further submits that the trial Court ought to have seen that the subject land is Government land, it can be revealed during the course of inspection since after inspection if boundaries are noted around the land, the Court below can come to just conclusion with proper adjudication of the issue and also ought to have seen that the respondents nowhere contended that any prejudice would be caused if the Advocate Commissioner visited and note down the physical features except contending that with regard to previous litigation, therefore no prejudice would be caused to either of the parties if the Advocate Commissioner is appointed. 6. On the other hand, learned counsel for the respondents submits that there is no requirement to appoint an Advocate Commissioner at this stage and this Court and Appellate Courts have clearly dealt with regarding th schedule property and declare that the said property is a private property as such the petition under Order 26 Rule 9 CPC cannot be maintainable and the trial Court has rightly dismissed the application of the petitioner and hence prayed to dismiss the present CRP. 7. As seen from the material available on record, it is observed that, it is crystal clear that the present impugned petition was filed claiming that the schedule property is a Government land and the same is assigned to the petitioner. but it can be proved by way of documentary proof since the petitioner herself stated in the affidavit and petition that her name was mutated in the Revenue records and assignment also made in favour of the petitioner. 8. but it can be proved by way of documentary proof since the petitioner herself stated in the affidavit and petition that her name was mutated in the Revenue records and assignment also made in favour of the petitioner. 8. In case of VADLAMANI SURYANARAYANA MURTHY v. SARIPALLI BALAKAMESWARI AND OTHERS.; 2007 (2) ALT 636 this Court held that the Commissioner can be appointed in executions also in view of Order 26 Rule 18-A of the Code of Civil Procedure and further held in the facts and circumstances of the case of the said case that the appointment of the Commissioners in the matters of such nature would amount to reopening the entire issue and may even lead to annulling the decree as a whole. In the said judgment the judgment debtor filed an application in E.P. for appointment of Advocate Commissioner. 9. In another case of High Court of Judicature, Telangana and Andhra Pradesh 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 Son of 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 exparte 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. 10. 10. 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. 11. Having regard to the facts and circumstances of the case, this Court is of the view that, no right should be affected to either of the parties if the Advocate Commissioner visited the schedule property and made inspection and if file final report. It is further observed that the subject land is Government land, it can be revealed during the course of inspection since after inspection if boundaries are noted around the land, the trial Court can come to just conclusion with proper adjudication of the issue and no prejudice would be caused to either of the parties if the Advocate commissioner is appointed. Therefore, this Court deems fit to issue a direction to the trial Court while setting aside the impugned order. 12. Accordingly, the Civil Revision Petition is allowed. The impugned order dtd. 1/6/2016 passed in E.A.No.491 of 2015 in E.P.No.267 of 2008 in O.S No.193 of 1991 by the trial Court is hereby set aside. There shall be no order as to costs. 13. As a sequel, all the pending miscellaneous applications shall stand closed.