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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
M.S. RAMACHANDRA RAO, J.
Jajula Koteshwar Rao – Appellants
Vs.
Ravulapalli Masthan Rao – Respondent
CRP No. 4934 of 2014
Decided On : 02.09.2015
Constitution of India, 1950 – Article 227 – Civil Procedure Code, 1908 – Order XXVI – Rule 9 – Civil Suit – Suit for declaration of his right in the plaint schedule property – Mandatory injunction – Challenging order in IA of Principal Junior Civil Judge petitioner is defendant in the above suit – Respondent filed the said suit against the petitioner for declaration of his right in the plaint schedule property and for consequential mandatory injunction directing the petitioner to remove XXI wall constructed in the schedule site shown in the plaint plan. According to the respondent/plaintiff at a place shown as XXI in the plaint plan, there was previously a mud wall existing, which was the wall of the petitioner, but the said mud wall was removed and another wall was constructed with a width of 9 inches at the same place, and in doing so, the petitioner occupied the site belonging to the respondent and his family at the time when they are away on pilgrimage to Written statement was filed by the petitioner opposing the suit claim and contending that the wall XXI was not correctly shown in the plaint plan. He denied that previously there used to be a mud wall and the same has been removed and the present wall has been constructed with a width of 9 inches. He alleged that in the plaint plan, the respondent had not shown the extent of the respondents property or its measurements, that it was a vague and misleading plan and therefore the respondent is not entitled to any relief in the suit –Held, object of the local investigation under Order XXVI Rule 9 CPC is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but can be taken only from the peculiar nature, on the spot. Commissioner in effect is a projection of the Court appointed for a particular purpose. The law of evidence enjoins upon a party to prove the fact which he relies on and in that sense, an obligation is cast upon the party; and if he fails to discharge that obligation, adverse consequence will follow and he will have to face the repercussions of the same. This right of the party to adduce evidence gets adjudicated in the interlocutory proceedings under Order XXVI Rule 9 CPC Therefore, I also reject the contention of the petitioner that appointment of an Advocate-Commissioner in the facts and circumstances of the case, amounts to collection of evidence. In fact in Haryana Waqf Board v. and others, (2008) 8 SCC 671, the Supreme Court has also held that in a case where demarcation of the disputed land is warranted, it would be appropriate for the Court to direct investigation by appointing a local investigator under Order XXVI Rule 9, at the stage when the application was filed, only PWs. 1 and 2 had been examined and the matter was posted for further evidence of the respondent. In the circumstances it cannot be said that there is any undue delay on the part of the respondent in seeking appointment of an Advocate-Commissioner. Therefore, I see no error of jurisdiction in the order passed by the Court below – Civil revision petition is dismissed
M.S. Ramachandra Rao, J.
1. This civil revision petition is filed under Article 227 of the Constitution of India challenging the order dated 29.10.2014 in IA No. 1761 of 2014 in OS No. 817 of 2006 of the Principal Junior Civil Judge, Ongole, Prakasam District. The petitioner herein is the defendant in the above suit. The respondent filed the said suit against the petitioner for declaration of his right in the plaint schedule property and for consequential mandatory injunction directing the petitioner to remove XXI wall constructed in the schedule site shown in the plaint plan.
2. According to the respondent/plaintiff at a place shown as XXI in the plaint plan, there was previously a mud wall existing, which was the wall of the petitioner, but the said mud wall was removed and another wall was constructed with a width of 9 inches at the same place, and in doing so, the petitioner occupied the site belonging to the respondent and his family at the time when they are away on pilgrimage to Tirupathi.
3. Written statement was filed by the petitioner opposing the suit claim and contending that the wall XXI was not correctly shown in the plaint plan. He denied that previously there used to be a mud wall and the same has been removed and the present wall has been constructed with a width of 9 inches. He alleged that in the plaint plan, the respondent had not shown the extent of the respondent's property or its measurements, that it was a vague and misleading plan and therefore the respondent is not entitled to any relief in the suit.
4. Issues were framed. Trial commenced and PWs. 1 and 2 were examined. The matter stands posted for further evidence of the respondent.
5. At that stage, the respondent filed IA No. 1761 of 2014 under Order XXVI Rule 9 CPC alleging that if an Advocate-Commissioner is appointed and measurements are taken in between the respondent's western house wall and western compound wall, it would indicate the difference in measurements. He pleaded that it is necessary to appoint an Advocate-Commissioner to visit the suit schedule property to measure the distance between the petitioner's western house wall and the newly constructed compound wall shown as XXI in the plaint plan.
6. Counter-affidavit was filed by the petitioner opposing this application. He contended that filing of this application is an abuse of process of law and is not acceptable since it is filed eight years after filing of the suit; that it is filed only for collection of evidence; and the Advocate-Commissioner cannot be appointed for collection of evidence. He also denied that he had encroached any part of the respondent's property.
7. By order dated 29.10.2014, the Court below allowed the said application.
8. It held that from the averments in the affidavit filed in support of the I.A., it appears that it is necessary to appoint an Advocate-Commissioner to decide the issue of encroachment.
9. Challenging the same, this revision is filed.
10. Counsel for the petitioner contended that the application for appointment of Advocate-Commissioner was filed eight years after filing of the suit and the Court below ought not to have entertained it. He further contended that the petitioner had not encroached any land belonging to the respondent and that if an Advocate-Commissioner is appointed, it would amount to collection of evidence, which is impermissible in law. He placed reliance on a judgment of this Court reported in Papasani Sankara Reddy v. Kandula Hanumantha Reddy and others, 2013 (4) ALD 322 : 2013 (5) ALT 40.
11. In Papasani Sankara Reddy's case (supra), there was a pleading by the plaintiff that the defendant had occupied part of the public street and raised construction. This Court held that unless plaintiff had relevant evidence in his custody he is not expected to file the suit and even though Order XXVI Rule 9 CPC envisages appointment of Advocate-Commissioner for elucidation of the matters in dispute. Commissioner is ordinarily to be appointed
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