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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
K. MANMADHA RAO, J.
Pothasetti Srinivasu Dora – Appellant
Versus
Achanta Seshakumari – Respondent
C.R.P.No.112 of 2019
Decided on : 14-06-2023
Advocate Commissioner - Property Dispute - Order XXVI Rule 9 of CPC - Appointment of Advocate Commissioner - G. Ramanaiah Vs. K. Krishnaiah, 2019 (4) ALD 146; Papasani Sankara Reddy Vs. Kandula Hanumantha Reddy and others, 2013 (4) ALD 322; Mohammed Jaffer Abdul Qadeer Qureshi Vs. Aziz-ur-Rehman Qureshi and others, 2016 (3) Andh LD 38; Badana Mutyalu and another Vs. Palli Appalaraju, 2013 (5) ALD 376; Shameem Begum Vs. Vennapusa Chenna Reddy and another, 2018 (2) ALD 297; Shaik Zareena Kasam Vs. Patan Sadab Khan, 2011 (4) ALD 231
Fact of the Case:
The petitioners filed a suit for permanent injunction against the respondent. The respondent filed a petition seeking appointment of an Advocate Commissioner to determine the location and boundaries of the disputed property.
Finding of the Court:
The court set aside the trial court's order appointing an Advocate Commissioner, stating that the respondent's claim lacked prima facie evidence and that the appointment of an Advocate Commissioner was unnecessary.
Issues: Dispute over property boundaries and location, necessity of appointing an Advocate Commissioner, validity of the respondent's claim.
Ratio Decidendi: The appointment of an Advocate Commissioner is warranted when there is a genuine dispute over property boundaries and location, and when the available evidence is insufficient to determine the same.
Final Decision: The court disposed of the Revision Petition, setting aside the trial court's order and directing the petitioners to raise any objections before the trial court.
Based on the provided legal document, the key points are as follows:
The appointment of an Advocate Commissioner is justified when there is a genuine need to clarify property boundaries and location, especially when the available evidence is insufficient to determine these aspects (!) (!) (!) (!) .
The purpose of appointing an Advocate Commissioner under Order XXVI Rule 9 of the Civil Procedure Code is to elucidate disputed facts, particularly in cases involving identification, location, or measurement of property, and not merely to gather evidence to support a party’s claim (!) (!) (!) (!) (!) .
The Court’s function is to decide issues of possession and ownership, and such judicial functions cannot be delegated to an Advocate Commissioner. The role of the Commissioner is primarily to assist the Court by providing factual findings on physical features or local investigations (!) (!) (!) (!) .
The appointment of a Commissioner is generally appropriate when the evidence on record is inadequate or ambiguous, and when physical verification or survey is necessary to clarify the facts, particularly regarding boundaries or encroachments (!) (!) (!) (!) (!) .
The Court must carefully consider whether the purpose of the investigation is to collect evidence or to elucidate facts, and should avoid appointing Commissioners for purposes that amount to evidence collection, which is the judicial function of the Court (!) (!) (!) .
When disputes involve boundary identification or physical features, local investigation through a Commissioner is appropriate and necessary to prevent ambiguity and to ensure accurate adjudication (!) (!) (!) .
The Court has the discretion to direct objections to the Commissioner’s report and to examine the report and the physical features on record during trial proceedings. This ensures that the parties have an opportunity to contest or clarify the findings (!) (!) .
The Court’s decision to appoint or reject an Advocate Commissioner should be based on the facts of each case, particularly considering whether the evidence on record is sufficient or if physical verification is essential for a fair resolution (!) (!) (!) .
The final order in this case set aside the trial court’s earlier decision to appoint an Advocate Commissioner, emphasizing that the purpose of such an appointment is to clarify disputed facts, not to gather evidence for the parties (!) (!) .
The case underscores that the Court’s primary role is to determine ownership and possession, and local investigations or physical surveys should be employed only when necessary to elucidate facts that are not clearly evident from the documents or available evidence (!) (!) .
These points summarize the principles governing the appointment of Advocate Commissioners in property disputes, emphasizing the importance of their role in clarifying facts rather than collecting evidence, and highlighting the Court’s authority and discretion in such matters.
ORDER :
This Revision Petition, under Article 227 of the Constitution of India, is preferred against the order, dated 17.12.2018, in I.A.No.1350 of 2018 in O.S.No.408 of 2018 on the file of the Court of I Additional Senior Civil Judge, Rajamahendravaram (For short ‘trial Court’) filed under Order XXVI Rule 9 of CPC seeking to appoint an Advocate Commissioner.
2. Heard Sri. Mangena Sree Rama Rao, learned counsel for the petitioners and Sri T.V.S.Prabhakara Rao, learned counsel for the respondent.
3. The brief facts of the case are that the petitioners herein are the plaintiffs, who filed suit in O.S.No.408 of 2018 before the trial Court for grant of permanent injunction and the respondent herein is the defendant in the suit. During the suit proceedings, the respondent filed I.A.No.1350 of 2018 under Order XXVI Rule 9 of the CPC by contending that she is the absolute owner of the plot No.166 which is situated Southern side of her another plot No.168 at Bhaskar Nagar, Rajahmundry, which was acquired by her by virtue of registered document dated 21.06.2007 and she is in peaceful possession and enjoyment of the schedule property. The Northern side plot of 166 i.e., plot No.168 is also belongs to her, which was also acquired by way of gift deed. She further submits that West of her plot i.e., 166, 167 is situated is not belongs to vendor of the plaintiffs as alleged by them. Plot No.169 is situated immediately to Western side of her plot No.168 which is northern side to the plot No.166. The plot No.169 is belongs to one Smt. Koppisetty Syamala Devi and they constructed a building with approved plan. She further submits that she is residing in Chennai. The claim of the respondents that the plot Nos.187 and 186 are adjacent as situated, on the plan attached to their sale deed is created one and having knowledge about the falsity, to grab her property by taking advantage of old age, got created documents and filed the suit and on the teeth of injunction trying to occupy the plot No.166, even it is not plot No.187 as alleged by them. The respondents are trying to interfere with her peaceful possession and enjoyment and her son also gave complaint to police, there the respondents keep quiet, but surprisingly, filed the suit for grant of permanent injunction against her. The respondents are having rowdy elements and dumped some material for construction in her plot and his son is unable to resist their acts. To know the correct facts and the constructions made by the respondents and to know the plot in question is plot No.187 as claimed by the respondent or her plot No.166, the appointment of Advocate commissioner is very much essential. Hence, she constrained to file this Petition.
4. The 1st respondent/1st petitioner herein filed his counter before the trial court and contended that there is no necessity to the respondent to claim the other properties. The petitioner suppressed the truth contained in the link documents with regard to the boundaries etc., and got registered with fraudulent boundaries, to claim wrongfully and the petitioner has been trying to grab the property of others, knowing fully well that her plot is situated elsewhere. She admitted that she is residing in Chennai and she is never in possession of these respondents plot and has no personal knowledge of the topography and she is going to lose nothing as her plots is very much safe where it exists and that the plots of respondents are never adjacent to her plot and it is situated elsewhere at a far place even according to the layout plan and rough plans do not create confidence. The link document of the petitioner itself clearly falsifies her claim, according to which, the boundaries are entirely different from the boundaries claimed by the petitioner under the impugned document, as such, the petitioner herself is unable to establish prima facie as to where exactly her plot is situated, with reference to the boundaries etc., and moreover, her title itself is in the cloud,
AI
The appointment of an Advocate Commissioner is justified when there is a genuine need to elucidate property boundaries and location, and when the available evidence is inadequate to determine the sam....
An Advocate Commissioner can be appointed to verify physical features of property but not to ascertain possession in a suit for injunction.
The discretion of appointing an Advocate Commissioner under CPC does not equate to gathering evidence; it serves to resolve disputes of property boundaries effectively.
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