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2023 DIGILAW 1458 (AP)

Nakka Venkateswara Rao v. Palli Raja Rao

2023-11-17

A.V.SESHA SAI

body2023
JUDGMENT 1. Heard Sri Ch.B.R.P.Sekhar, learned counsel for the petitioners, and Sri Narasimha Rao Gudiseva, learned counsel for the respondent, apart from perusing the material available on record. 2. Defendants in O.S.No.161 of 2017, on the file of the Court of the II Additional Junior Civil Judge-cum-II Additional Judicial Magistrate of First Class, Nuzvid, are the petitioners in the present Revision, filed under Article 227 of the Constitution of India. 3. Challenge in the present application is to the order, dtd. 19/5/2023, passed by the said Court, dismissing I.A.No.222 of 2023, filed by the defendants-petitioners herein under Order 26 Rule 9 of the Code of Civil Procedure, 1908, for appointment of Advocate Commissioner to note down the physical features of the suit schedule property, including underground pipeline, passing through the suit schedule property, and also openings by way of valves to give water to the suit schedule property and also to note the entire pipeline arrangement and existing bunds and to file report. 4. Respondent herein instituted the said suit against the petitioners herein for permanent injunction and the plaint schedule property is an extent of Ac.0.65 cents of dry land in R.S.No.327/2B of Chekkapalli Village, Musunuru Mandal, Krishna District. 5. In the said suit, the defendants-petitioners herein filed the present I.A.No.222 of 2023. The plaintiffrespondent resisted the application by way of filing counter. The learned Judge, by way of the impugned order, dismissed the application. 6. According to the learned counsel for the defendantspetitioners, the order impugned is highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of Order 26 Rule 9 of the Code of Civil Procedure; that the appointment of Commissioner would assist the Court to arrive at a just and correct conclusion; that the reasons assigned by the learned Judge in the impugned order are neither sustainable nor tenable in the eye of law; that in view of the denial of existence of pipeline and outlets in the suit schedule property by the plaintiff, recording of physical features of the suit schedule property by Advocate Commissioner would assist the Court for arriving at the conclusions. In support of his submissions and conclusions, learned counsel places reliance on the judgment of the composite High Court in C.R.P.No.360 of 2014, dtd. 11/11/2014, and the judgment of this Court in the case of Vasupalli Danayya vs. Pinnmaraju Srinivas, 2023(3) L.S. 119 (A.P.). In support of his submissions and conclusions, learned counsel places reliance on the judgment of the composite High Court in C.R.P.No.360 of 2014, dtd. 11/11/2014, and the judgment of this Court in the case of Vasupalli Danayya vs. Pinnmaraju Srinivas, 2023(3) L.S. 119 (A.P.). 7. On the contrary, Sri Narasimha Rao Gudiseva, learned counsel for the plaintiff-respondent, contends that there is no error nor there exists any infirmity in the impugned order and, in the absence of the same, no interference of this Court is warranted; that in view of the settled proposition of law that in a suit for mere injunction, the application for appointment of Commissioner for collection of evidence is not maintainable; that as there is no dispute as to the identity of property, the present application is liable to be rejected. To bolster his submissions and contentions, learned counsel for the respondent takes the support of the order of this Court in C.R.P.No.1705 of 2022, dtd. 5/12/2022. 8. In the above background, now the issues that emerge for consideration of this Court are: "1. Whether the order impugned, in the facts and circumstances of the case, is sustainable and tenable? and 2. Whether the questioned order warrants any interference of this Court under Article 227 of the Constitution of India?" 9. It is a settled and well established principle of law that there is absolutely no bar/prohibition for appointment of Commissioner even in a simple suit for injunction if the circumstances warrant such appointment. The suit in the case on hand is also a suit for permanent injunction. 10. As per the pleadings on record, the case of the defendants-petitioners is that an extent of Ac.0.35 cents, out of suit property on Western side, belongs to one Smt.Talliboina Venkata Seshamma and there exists a dividing bund in North-Southern direction separating her Ac.0.35 cents of land from the balance suit schedule property and to the East of the said bund, 3rd defendant purchased an extent of Ac.0.35 cents and defendant No.4, who is the brother of the defendant No.3, purchased an extent of Ac.0.25 cents and to the South of the said Ac.0.60 cents, the land of defendant No.2, who is the mother of defendant No.3 and defendant No.4, and lands of one Sri Talliboina Musalaiah, who is the husband of Smt.Talliboina Venkata Seshamma, are situated to certain extent. It is the further case of the defendants that there is no dividing bund between the land of defendant No.2 and Ac.0.60 cents of defendant No.3 & defendant No.4 out of the plaint schedule and that defendant No.3 has land adjoining the Northern side of the plaint schedule property and there is a dividing bund between the plaint schedule property and the property of the defendant No.3 on the Northern side and that defendant No.3 has land on the Eastern side of Donka, which is situated on the East of the plaint schedule property, and that, for the purpose of irrigating their lands, including the suit schedule property, defendant Nos.2, 3 & 4 and neighbouring land owners got arranged a bore well in front of the house of defendant No.4 and from there they got formed an underground pipelines through the lands of defendant No.2, suit property including the property of defendant No.3 and lands of Sri Katari Tirupathi Rao and others upon the land of Sri Katari Chinni Rao and that, to give water to the suit property, defendants made an opening by arranging a valve to the said pipeline. 11. According to the defendants, the reason for filing the present application is that, during the course of cross- examination, P.Ws.1& 2 denied the existence of pipeline and its openings in the plaint schedule property. While urging the said reason and pleading in the manner, indicated supra, the present application came to be filed for appointment of Advocate Commissioner to note down the physical features of the plaint schedule property, including the underground pipeline passing through the suit property and the openings by way of arranging valves to give water to the suit property, and to note down the entire pipeline arrangement and the existing bunds. 12. The plaintiff filed a counter principally contending that the defendants filed the application at a belated stage and for the purpose of collecting the evidence. The fact remains that the present application came to be filed when the suit stood posted for the evidence of defendants, as such, it cannot be said that the application being belated. Another aspect, which needs mention at this juncture, is that the defendants in their written statement pleaded categorically that by mistake the Survey number mentioned in their sale deed dtd. 4/6/1992, was wrongly noted as R.S.No.328 instead of R.S.No.327, however, the boundaries would tally. Another aspect, which needs mention at this juncture, is that the defendants in their written statement pleaded categorically that by mistake the Survey number mentioned in their sale deed dtd. 4/6/1992, was wrongly noted as R.S.No.328 instead of R.S.No.327, however, the boundaries would tally. It is also significant to note that P.W.2, who is no other than the son of plaintiff, while denying the existence of the pipeline, categorically expressed his consent for appointment of Advocate Commissioner. 13. A perusal of the impugned order shows that the learned Judge, at paragraph No.9 of the order, observed as follows: "It is a settled law that 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 surveyor may become necessary". The learned Judge in the following sentence held as follows: "In the case at hand, even it is not case of the petitioners there is a dispute with regard to physical features of the suit schedule property". 14. The ultimate effort of the Court is to find out the reality and to render complete justice. The appointment of Commissioner is obviously a step in furtherance of doing the same. In a suit for injunction, the duty of the Court, having regard to the material available on record, is to find out the person in possession of the suit schedule property as on the date of institution of the suit. The Commissioner, appointed under Order 26 Rule 9 of the Code of Civil Procedure, cannot be permitted to report who is in possession of the plaint schedule property as on the relevant date. At the same time, it is to be noted that on the basis of the report of the Commissioner, indicating the physical features of the property, the Court has to arrive at the conclusions with regard to the position and possession of the property. At the same time, it is to be noted that on the basis of the report of the Commissioner, indicating the physical features of the property, the Court has to arrive at the conclusions with regard to the position and possession of the property. In the case on hand, the categorical pleading of the defendants in the written statement is that though they have been in possession and enjoyment of the plaint schedule property in correct boundaries, pursuant to the sale deed executed in the year, 1992, the survey number had wrongly been mentioned as 328 instead of 327. It is also the specific case of the defendants that there is a pipeline passing through the land with valves at certain places and the water is being used by them through the said pipelines. So, obviously, it is one of the circumstances which enable the learned trial Judge to adjudicate the issues in the main suit. The endeavour of the Courts should necessarily be in the direction of putting a quietus to all the issues in the cases by giving complete opportunity to all the stake holders. 15. Having regard to the factual scenario of the present case, this Court cannot agree with the contention that the application is a belated one, as the fact remains that the main suit is coming up for evidence of the defendants. This Court is also not inclined to agree with the contention advanced on behalf of the plaintiff that the present application for appointment of Advocate Commissioner is intended for collection of evidence. Having categorically stated in the first sentence of paragraph No.9 in the manner indicated, the trial Court grossly erred in declining to consider the request of the defendants for appointment of a Commissioner. 16. In the considered opinion of this Court, having regard to the facts and circumstances of the case, the appointment of Commissioner for the intended purpose would undoubtedly assist the Court to come to a reasonable and just conclusion. In view of these reasons, the judgment on which the learned counsel for the respondent seeks to place reliance would not render any assistance to the case of the respondents. 17. In this context, it would also be apt and appropriate to refer to the judgment of this Court in the case of Vasupalli Danayya vs. Pinnmaraju Srinivas (1st cited supra). 17. In this context, it would also be apt and appropriate to refer to the judgment of this Court in the case of Vasupalli Danayya vs. Pinnmaraju Srinivas (1st cited supra). In the said judgment, this Court, at paragraph No.9 (b), (c) held, as under: "(b) Jurisprudence on the appointment of Advocate commissioners particularly in a suit for injunction, is not in drought. In a plethora of decisions it was held that there is no embargo on appointment of Advocate commissioner even in a suit for perpetual injunction, if the circumstances so warrant. The thumb rule is that generally the Courts will be at loath to appoint Advocate commissioner for fishing out the evidence i.e., which of the two parties is in possession of plaint schedule property. Such a fact has to be established by the parties by way of cogent evidence for appreciation of the Court and it is not for the Court to collect the evidence on such fact by appointment of commissioner. (c) However, in respect of other facts emanating from an injunction suit, the Court can exercise its discretion to appoint Advocate commissioner. For instance, in a suit for injunction if physical features alleged to be effaced by one of the parties and in such cases, the appointment of commissioner may help in only recording the existing features without further stating as to how such physical features came into existence and who created them at what point of time etc. Similarly, in a suit for injunction, demarcation of boundaries may sometimes be necessitated for effective disposal of the suit. Then the commissioner at the discretion of the Court can be appointed. Sometimes, in a suit for injunction measurements of the suit property may be required to know the exact extent of the suit property. Any amount of documentary evidence may not give the correct status of the property on ground and in such circumstances, the Court can consider appointment of commissioner. These instances are only inclusive but not exhaustive. However as already noted supra, before appointing an Advocate commissioner, the Court has to consider whether such appointment will lead to collection of evidence which the parties can by other mode of evidence place before the Court or such appointment of Commissioner will place a clear picture for effective adjudication of the real controversy in the matter. However as already noted supra, before appointing an Advocate commissioner, the Court has to consider whether such appointment will lead to collection of evidence which the parties can by other mode of evidence place before the Court or such appointment of Commissioner will place a clear picture for effective adjudication of the real controversy in the matter. In the former case, the Court may not appoint a commissioner but in the later the Court may consider for appointment of commissioner. In these lines, there are a number of decisions. One such decision rendered by a learned Single Judge of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh is in Bandi Samuel and others vs. Medida Nageswara Rao. In the said decision learned Judge has referred a number of judgments which dealt with appointment of Advocate commissioner in injunction suits. The judgments cited by the petitioner in the instant case also of the same ilk." 18. For the aforesaid reasons and in view of the law laid down in the above referred judgment, the Civil Revision Petition is allowed, setting aside the order, dated 19. 03.2023, passed by the learned II Additional Junior Civil Judge-cum-II Additional Judicial Magistrate of I Class, Nuzvid, in I.A.No.222 of 2023 in O.S.No.161 of 2017 and, consequently, I.A.No.222 of 2023 for appointment of Commissioner stands allowed and the learned trial Judge is requested to take consequential action. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this case, shall stand closed.