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2016 Supreme(AP) 739
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATES OF TELANGANA AND ANDHRA PRADESH
M. Seetharama Murti, J.
Smt. A. Laxmamma - Petitioners
Vs.
Smt. A. Venkatamma - Respondent
Civil Revision Petition No. 3135 of 2016
Decided On : 27-10-2016
For the Petitioners: Mr. Ashok Anand Kumar, Counsel
Headnote:
Constitution of India - Article 227 - Code of Civil Procedure, 1908 - Order 26, Rule 9 read with Section 75 –Civil Revision - To appoint an advocate commissioner for local investigation of the suit – Plaintiffs brought the suit for a perpetual injunction in respect of two plots of 50 Square yards and 60 Square yards in two items in Sy.No.73/AA9 of Bomraspet village and Mandal of Mahabubnagar District, inter alia, claiming that they are the absolute owners and possessors of the said plots and that the 1st plaintiff acquired the first plot of 50 Square yards by virtue of a registered gift settlement deed dated 17.04.2013 and that the 2nd plaintiff acquired the second plot of 60 Square yards by virtue of a registered sale deed – Held, plaintiffs are claiming that they are in possession of the suit plots whereas the defendants are claiming that the plaintiffs are not in possession and that they are in possession of the house property and the vacant court yard in front of the house and that after obtaining the gift deed the plaintiffs tried to occupy that open site and that a criminal case is also registered and that the plaintiffs furnished wrong boundaries in the plaint and that in fact the defendants raised construction upto basement level in the open site. Be that as it may. The defendants are seeking appointment of a Commissioner specifically to make local inspection and note down the physical features viz., boundaries and also the existence of construction upto basement level in the property being claimed by them and to place before the Court an assured piece of evidence in the form of a Commissioners report to show that the boundaries given by the plaintiffs are incorrect and that the plaintiffs are making incorrect claim by showing incorrect boundaries in respect of the plaint schedule plots. The plaintiffs are asserting that the plaint schedule plots are correctly described. As rightly contended if both the parties and their witnesses assert the pleaded boundaries of the properties in the respective depositions, such oral evidence may not be sufficient to conclusively determine the correctness or otherwise of the contentions of either of the parties. Orders in the nature of appointment of an advocate Commissioner to note down the physical features and boundaries of the disputed properties are incidental and complimentary in nature and assist the Court in arriving at a just decision in the lis unlike supplementary orders. The request for appointment of Commissioner for the purpose stated by the defendants, in the considered view of this Court, by no stretch of imagination, can be called an attempt to gather evidence. Further, the pleadings of the parties in the interlocutory application would also show that the plaintiffs also filed a sketch map in respect of the suit plots. If the Commissioner is appointed, he can also verify and submit to the Court about the correctness or otherwise of the sketch map said to have been filed by the plaintiffs. Therefore, the appointment of a Commissioner, in the facts and circumstances of the instant case, would be helpful to the Court below in conclusively and effectively adjudicating the lis – Civil Revision Petition is allowed
Sri. M. Seetharama Murti, J.
This civil revision petition under Article 227 of the Constitution of India by the unsuccessful petitioners-defendants is directed against the order dated 02.05.2016 of the learned Junior Civil Judge, Kodangal, passed in IA.No.111 of 2016 in OS.No.20 of 2016 filed under Order 26, Rule 9 read with Section 75 of the Code of Civil Procedure, 1908, (the Code, for brevity) requesting to appoint an advocate commissioner for local investigation of the suit plots in Sy.No.73/AA9 situate in Bomraspet village and Mandal and note down the physical features of the same.
2. I have heard the submissions of Sri S. Ashok Anand Kumar, learned counsel for the revision petitioners-defendants (the defendants, for brevity). Though the respondents-plaintiffs are served with notices, none appears. I have perused the material record.
3. The facts that lead to the filing of this revision may be stated, in brief, as follows:
The plaintiffs brought the suit for a perpetual injunction in respect of two plots of 50 Square yards and 60 Square yards in two items in Sy.No.73/AA9 of Bomraspet village and Mandal of Mahabubnagar District, inter alia, claiming that they are the absolute owners and possessors of the said plots and that the 1st plaintiff acquired the first plot of 50 Square yards by virtue of a registered gift settlement deed dated 17.04.2013 and that the 2nd plaintiff acquired the second plot of 60 Square yards by virtue of a registered sale deed dated 17.04.2013, both duly registered in the Office of Sub-Registrar, Kodangal, and that the defendants attempted to commit acts of invasion and disturb their peaceful possession and enjoyment.
The defendants filed written statement denying the claims of the plaintiffs and inter alia contending that they are the owners and possessors of house no.4-41 situate at Bomraspet village in a total extent admeasuring 351 Square yards and that there is an open court yard in front of the said house and that the plaintiffs having obtained a registered gift deed are trying to occupy the said open place with a dishonest intention and that on a complaint filed by the defendants a crime was registered and the plaintiffs were enlarged on bail and that the boundaries of the suit plots as mentioned by the plaintiffs in the plaint schedule are imaginary and false and that wrong boundaries are shown in the plaint schedule. Further, in the written statement, the defendants furnished boundaries of the properties and denied the boundaries of the plots mentioned in the schedule of the plaint and pleaded that they constructed basement around the open place in front of their house in the year 1997 and that neither the plaintiffs nor their vendors were and are in actual physical possession of the suit plots.
Reiterating the said contentions pleaded in the written statement, the defendants filed the subject application for appointment of an advocate commissioner for local investigation of the suit plots in SyNo.73/AA9 situate in Bomraspet village and Mandal and to note down the physical features of the same. The plaintiffs resisted the said application reiterating their pleaded case.
The trial Court, by the order impugned in this revision, dismissed the application filed by the defendants, inter alia, observing that the suit is one for perpetual injunction and that the issue that falls for consideration is in regard to the possession and enjoyment of the suit property and that the legal burden is on the plaintiffs to establish their case by adducing necessary oral and documentary evidence and it is not for the defendants to disprove the case of the plaintiffs and that when the issues involved can be adjudicated on the basis of oral and documentary evidence, it is not necessary to appoint an advocate commissioner for the purpose desired by the defendants.
Aggrieved of the said order, the defendants filed this revision.
4. Learned counsel for the defendants while reiterating their pleaded case and while sta
