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2024 Supreme(AP) 1220
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
R. Raghunandan Rao, J.
Duvvuru Mohan Reddy – Appellant
Versus
Kuntrapkam Uma Maheswar Rao and Others – Respondents
Civil Revision Petition No. 545 of 2024
Decided On : 12-07-2024
Advocate Appeared:
For the Appellant : N. Nitesh
For the Respondent: V. Hima Bindu
IMPORTANT POINT
The appointment of an Advocate Commissioner is justified for on-site evidence collection to resolve land disputes, emphasizing the necessity of local investigation.
Headnote:
(A) Civil Procedure Code, 1908 - Order XXVI Rule 9 - Appointment of Advocate Commissioner - The petitioner sought a permanent injunction against the respondents regarding land ownership - The trial Court allowed the appointment of an Advocate Commissioner to ascertain the existence of a wall around the disputed land - The court found that the appointment was not premature as it was necessary for resolving the dispute. (Paras 12, 13, 14)
(B) Evidence Collection - The court noted that local investigation is essential for collecting evidence that cannot be presented in court, emphasizing the need for an on-site inspection to clarify ambiguities regarding land boundaries. (Paras 14, 15)
Facts of the case:
The petitioner filed a suit for permanent injunction against the respondents regarding land ownership, claiming possession through a registered deed of sale. The respondents contended that the petitioner was encroaching on their land.
Findings of Court:
The trial Court's order allowing the appointment of an Advocate Commissioner was upheld, as it was necessary to determine the existence of a wall around the disputed land.
Issues: The main issue was whether the appointment of an Advocate Commissioner at this stage was premature or necessary for resolving the land dispute.
Ratio Decidendi: The court ruled that the appointment of an Advocate Commissioner was justified to ascertain the physical features of the land and resolve the dispute regarding the wall's existence.
Result: Civil Revision Petition dismissed.
ORDER :
1. Heard Sri N. Nitesh, learned counsel for the Petitioner and Smt. V. Hima Bindu, learned counsel for the respondents.
2. The petitioner herein had filed O.S. No. 337 of 2023 before the Principal Civil Judge (Junior Division)-Cum-Judicial Magistrate of First Class, Puttur against three private defendants and three official defendants, for grant of permanent injunction, restraining the defendants 1 to 3 therein from interfering with the suit schedule property consisting of Ac. 4.13 cents in Sy. No. 197-3 and Ac. 0.06 cents in Sy. No. 197-5B of Thirumandyam Village, Vadamalapet Mandal, Tirupati.
3. The case of the petitioner was that, the aforesaid suit schedule property had been purchased by him, by way of a registered deed of sale dated 06.09.2006, registered as document No. 1798 of 2006 and that he was in possession of the suit schedule property due to which, the petitioner had also been issued electronic pass book for the said land.
4. The defendants 1 to 3, who are arrayed as respondents 1 to 3 herein, had opposed the suit. The case of the defendants was that they are part of a joint family and their late uncle had acted as the manager of the joint family during his life time. The respondents 1 to 3 contend that their late uncle, as manager of the joint family, had purchased two extents of land under registered deeds of sale dated 19.04.1961. In one deed of sale, the manager of the joint family had purchased Ac. 0.21 cents of land in Sy. No. 200/1 of the village which was registered as document No. 885 of 1961. This deed of sale was executed by one Sri V. Siva Ramayya. Under the second deed of sale, the late manager of the joint family had purchased Ac. 0.21 cents of land in Sy. No. 197/3 from one Sri V. Rama Krishnaiah and the said deed of sale was registered as document No. 883/1961. However, a mistake had taken place in the mention of the survey in which the land was situated. Due to this mistake, the deed of sale recorded the survey as 200/1 instead of 197/3.
5. The defendants 1 to 3 also took the plea that the deed of sale relied upon by the petitioner herein did not convey any title to the petitioner as the vendors of the petitioner themselves do not have any title. The respondents 1 to 3 further contended that the petitioner taking advantage of this lacuna had got the land belonging to the respondents 1 to 3 transferred in his name through other persons and had commenced construction of a compound wall to incorporate the land belonging to the respondents 1 to 3 within his land holding.
6. The respondents 1 to 3 on the basis of the contention that the petitioner herein was seeking to build a compound wall around the land belonging to the respondents 1 to 3, had moved I.A. No. 74 of 2024, for appointment of an Advocate Commissioner, to note down the physical features of the land especially on the question of whether there is a wall enclosing the land of the respondents 1 to 3 along with other lands being claimed by the petitioner.
7. The petitioner had opposed the said application on the twin grounds that the application is premature and that an application is an attempt to collect evidence rather than a proper application for an appointment of an Advocate Commissioner.
8. The trial Court after considering both contentions, had allowed the application, by way of an order dated 19.02.2024. Aggrieved by the said order, the present Civil Revision Petition has been filed.
9. Sri V. Nitesh, learned counsel for the petitioner in support of his contentions has relied upon the Judgment of a learned Single Judge of the combined High Court of Andhra Pradesh in the case of Gangavarapu Hanumantha Rao @ Anjaneyulu vs. Battigiri Ramulu and Others, 2008 (1) ALD 466 and the Judgment of a learned Single Judge of this Court dated 12.01.2024 in C.R.P. 45 of 2024.
10. Smt. V. Hima Bindu, learned counsel appearing for Sri V. Venkata Subbaiah, learned counsel for the respondents relied upon a Judgment of a learned Single Judge of the High Co
