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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
Subba Reddy Satti, J.
Thota Tambi@prabhakara Rao – Appellant
Versus
Shaik Abdullah – Respondent
Civil Revision Petition No.602 of 2022
Decided On : 28-10-2022
COMMISSIONER APPOINTMENT - ORDER XXVI RULE 9 CPC - ORDER 75 CPC - SECTIONS 75, 227 CPC - SUMMARY
Fact of the Case:
Plaintiff filed a suit for recovery of possession of property and consequential permanent injunction. Plaintiff pleaded title to the suit schedule property by way of registered document and also pleaded encroachment of the schedule property after dismissal of his earlier suit for injunction. Defendants by filing written statement contended that they have been residing in thatched roof house and 1st defendant is running cycle shop in cement sheet shed in 100 square yards and they have been residing there since decades.
Finding of the Court:
The object of issuance of commission under Order XXVI Rule 9 of CPC is to elucidate any matter in dispute but not to collect or gather evidence. An Advocate-Commissioner cannot be appointed for making an enquiry about factum of possession of the property in dispute, which is nothing, but fishing of evidence and not elucidating any matter in dispute.
Issues: Whether the trial court erred in appointing an advocate commissioner to measure the sites of both petitioner and respondents with the help of their registered documents with the assistance of Mandal Surveyor, Pedapadu and also to note down the physical features of plaint schedule property and to file a plan/sketch of the sites of both parties.
Ratio Decidendi: In a suit filed for recovery of possession of property, plaintiff asserted title to the plaint schedule property by way of registered document. Defendants initially did not aver anything about the registered document. However, plaintiff himself filed registered partition deed said to have been affected between defendants along their sister. Of course, these documents are yet to be marked. Thus, the registered documents are available with both parties. Plaintiff alleged that defendants occupied the plaint schedule property and erected shed therein. Defendants denied the same by filing written statement. In view of the denial, unless the Court elucidate the information regarding the measurements of property available on land, any amount of evidence basing on registered documents is of no avail. If advocate commissioner is appointed to measure the property basing on registered documents, it will help the Court to find out as to the existence of property on land. In view of the dispute, appointment of advocate commissioner to measure the property will not amount to gathering of evidence.
Final Decision: The revision petition is dismissed. No order as to costs.
ORDER :
1. Defendants in suit filed the above revision against the order dated 18.01.2022 in I.A.No.94 of 2020 in O.S.No.257 of 2015 on the file of I Additional Junior Civil Judge, Eluru.
2. Respondent herein, being plaintiff filed suit O.S.No.257 of 2015 for recovery of possession of plaint schedule property and for permanent injunction.
3. Pleaded case of the plaintiff is that he purchased an extent of 42 square yards of site in R.S.No.439/1, adjacent to his house on Northern side from one Shaik Saleem under a registered sale deed dated 06.09.2005; that vendor’s mother purchased the property under a registered sale deed dated 23.03.1997; that plaint schedule property is a vacant site; that prior to purchase of plaint schedule property, plaintiff already purchased 134 square yards to the South of plaint schedule property and he constructed a pucca building and has been residing therein; that defendants who are residing on road side attempted to trespass into the schedule property and the plaintiff filed suit O.S.No.426 of 2010 for permanent injunction and the said suit was dismissed; that subsequent to dismissal of said suit, defendants raised asbestos roof shed and hence, suit is filed for recovery of possession of plaint schedule property.
4. Written statement was filed on behalf of defendants and contended interalia that defendants have been residing in the thatched house and 1st defendant is running cycle shop in the cement sheet shed in 100 square yards of their site since several decades. Plaintiff kept quiet for so many decades and filed the frivolous suit and suit for recovery of possession without asking for declaration is not maintainable and eventually prayed the Court to dismiss the suit.
5. Pending the suit, plaintiff filed I.A.No.94 of 2020 under Order XXVI Rule 9 and Section 151 of CPC to appoint advocate commissioner to measure the site belongs to plaintiff and defendants with registered documents and to note down the physical features with the assistance of Mandal Surveyor. In the affidavit filed in support of the petition, while reiterating the contents in the plaint, it was further averred that the defendants/respondents with their sisters jointly executed a registered partition deed dated 09.10.2015; that 1st defendant got 23 square yards and 66 square yards in R.S.No.439/1 and 2nd defendant got 46 square yards in R.S.No.439/1 and whereas in written statement, it was contended that they are in possession of 100 square yards only. Hence, this application is filed for the reliefs stated supra.
6. This application was opposed by the respondents and contended interalia that in the earlier suit filed for injunction O.S.No.426 of 2010, Advocate Commissioner was appointed in I.A.No.1007 of 2010 and he, in turn, filed report stating that there is no existence of plaint schedule property in between the properties of petitioners and respondents and the said suit was dismissed on 24.07.2013. The present petition is filed to gather evidence and prayed the Court dismiss the petition.
7. Trial Court by order dated 18.01.2022 allowed the application and appointed Sri K.V.Satyanarayana as advocate commissioner to measure the sites of both petitioner and respondents with the help of their registered documents with the assistance of Mandal Surveyor, Pedapadu and also to note down the physical features of plaint schedule property and to file a plan/sketch of the sites of both parties. Aggrieved by the said order, the above revision is filed.
8. In this civil revision petition, 2nd respondent is shown as died.
9. Heard Sri C.Venkaiah, learned counsel for revision petitioners and Sri T.C.Krishnan, learned counsel for respondent.
10. Learned counsel for revision petitioners would submit that application was filed to gather evidence and hence, the trial Court ought to have dismissed the same. He would also submit that in O.S.No.426 of 2010 filed for injunction, an advocate commissioner was appointed and hence, there is no need to
In a suit for recovery of possession of property, appointment of an advocate commissioner to measure the property basing on registered documents will help the Court to find out as to the existence of....
Appointment of an Advocate Commissioner for property inspection is permissible and does not constitute evidence collection, facilitating resolution of title disputes without prejudice to rights.
An Advocate Commissioner can be appointed to verify physical features of property but not to ascertain possession in a suit for injunction.
The appointment of an Advocate Commissioner is unnecessary when sufficient evidence exists to determine the facts in a partition suit.
The Advocate Commissioner's report is non-adjudicatory and serves only to assist the court, not to bind it in decision-making.
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