Advocate Commissioner can be appointed in Appeal Suit

 Karre Narsimulu vs Gaddamidi Diddaiah And 11 Others on 21 January, 2021 

 HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD 

 **** CIVIL REVISION PETITION NO.1193 OF 2020 

Between: Karre Narsimulu ....Petitioner And Gaddamidi Siddaiah and 11 Others ....Respondent

1 This Civil Revision Petition, under Article 227 of the Constitution of India, was directed against the order dated 12.10.2020 passed in I.A.No.777 of 2019 in A.S.No.20 of 2015 on the file of the Court of the VIII Additional District Judge, Medak, wherein and whereby the appellate Court dismissed the Karre Narsimulu vs Gaddamidi Diddaiah And 11 Others on 21 January, 2021 Indian Kanoon - http://indiankanoon.org/doc/82274002/ 2 said I.A. filed by the petitioner seeking to appoint an Advocate Commissioner. 

2 The facts germane for consideration in this Civil Revision Petition, in nutshell, are that respondent herein filed O.S.No.74 of 2008 on the file of the Court of the Junior Civil Judge, Medak, for permanent injunction restraining the petitioner herein and others from interfering with the land in Sy.No.30/AA admeasuring Ac.1-00 guntas of Chegunta village. The case of the respondent being the plaintiff in the said suit was that he purchased the suit schedule property from one G.Muthyalu through registered document No.1865/2008 dated 22.7.2008 for a consideration of Rs.30,000/- and ever since he has been in possession and enjoyment of the same. However, since the petitioner herein and others are trying to interfere with his possession over the said property without any manner of right, he filed the suit seeking permanent injunction. The petitioner herein and three others filed written statement stating that one Ramaiah was the original owner of the suit land to an extent of Ac.3-12 guntas in Sy.No.30 out of which he sold Ac.0-10 gunts each to the petitioner and other defendants in the suit through ordinary sale deed and the sale was regularized by Tahsildar, Chegunta after recording the statement of said Ramaiah under Section 13-B, vide proceeding No.B/4694/05. The petitioner further stated that subsequently the property was transferred in the name of Muthyalu S/o Ramaiah. The respondent herein, having fully known about the execution of sale deed in favour of the petitioner by Ramaiah, got executed the sale deed in his favour from said Muthyalu. 

3 The trial Court, after framing appropriate issues, recording evidence on both sides and hearing learned counsel on both sides, decreed the suit in favour of the respondent herein granting permanent injunction. 

4 Aggrieved by the decree and judgment passed by the trial Court, the petitioner and others preferred A.S.No.20 of 2015 on the file of the Court of the VIII Additional District Judge, Medak. During pendency of the appeal, the petitioner filed I.A.No.777 of 2017 under Order XXVI Rule 9 r/w Section 151 CPC, seeking appointment of an advocate commissioner to survey the lands in Sy.No.30, total extent of Ac.6-24 guntas and identify the land of the petitioners and to note down the physical features and measurements of land with the help of surveyor. The case of the petitioner was that the trial Court in its judgment held that when the entire extent of Sy.No.30 is more than Ac.6-00 guntas and the extent of land claimed by both parties is only Ac.2-00 guntas, the point that both parties are having land cannot be ruled out and it is their duty to get it surveyed with surveyor. Therefore, advocate commissioner may be appointed to survey the respective lands of the parties. The respondent herein filed his counter denying the pleadings of the petitioner contending that the petitioner did not take any steps before the trial Court to appoint an advocate commissioner to survey and demarcate the lands in Sy.No.30 to an extent of Ac.6-24 guntas and to identify the lands of the petitioner and note down the physical features of the land etc. 

5 The appellate Court by order dated 12.10.2020 dismissed the I.A.No.777 of 2020, which is impugned herein, observing that advocate commissioner cannot be appointed to collect and gather evidence in respect of suit schedule property of either parties to establish who is in possession of which land and that in a suit for permanent injunction the parties to the litigation should establish their possession by way of evidence both oral and documentary; that the petitioner filed the petition at a belated stage when the appeal is coming up for arguments. As stated supra, aggrieved thereby the Karre Narsimulu vs Gaddamidi Diddaiah And 11 Others on 21 January, 2021 Indian Kanoon - http://indiankanoon.org/doc/82274002/ 3 petitioners/appellants/ defendants preferred this Civil Revision Petition. 

6 The respondent / plaintiff filed his counter denying the material averments made by the revision petitioner, contending that only in order to protract the litigation, the petitioner filed the present Civil Revision Petition but nothing else, that too when the appeal is coming for arguments. 

7 Attacking the finding given by the appellate Court, the learned counsel for the petitioner argued that when there is serious dispute with regard to the location of the land, advocate commissioner can be appointed.

 8 Heard the learned counsel for the respondent. 

9 Now the point for consideration is can there be an order of appointing Advocate Commissioner in a suit for injunction at appellate stage? 1

0 POINT: As seen from the schedule of property, as was mentioned in the plaint, the respondent claims to be owner and possessor of land admeasuring Ac.1-00 guntas out of Ac.3-12 guntas in Sy.No.30/AA purchased from one Mutyalu S/o Ramaiah, whereas the petitioners herein claim that their vendor Ramaiah was the original owner of an extent of Ac.3-12 guntas and that the said Ramaiah sold Ac.0-10 guntas each to the petitioners. It is an admitted fact that the total extent of Sy.No.30 is Ac.6-24 guntas. The extent of the respondent is Ac.1-00 whereas the extent of the petitioners, is Ac.0-10 guntas each totalling to Ac.1-00. Even if the extent of both parties is taken as a whole, it would not be equivalent to the entire extent of the Sy.No.30 which is Ac.6.00 and odd. Therefore, if an advocate commissioner is appointed, it would sub serve the issue clinching in this case i.e. whether the entire survey No.30 is one single plot of Ac.6.00 and odd or whether it is sub-divided into 30AA or some other. Therefore, in order to put a quietus to the litigation appointment of advocate commissioner is necessary.

 11 It was held in Arvind Kumar Agarwal vs. Legend Estates (P) Ltd., rep. by its Managing Partner, Kokapet Village, Ranga Reddy District1, that ordinarily, in a suit for injunction, Advocate Commissioner is not appointed to gather evidence. Only in cases where there is a serious dispute regarding identity of the property or boundaries thereof, an Advocate-Commissioner can be appointed even in the suits filed for injunction. As is in the case on hand, where the parties to the litigation claim that their properties situate in different survey numbers, certainly, to come to a just conclusion that in which survey number the lands of the respective parties are situated, appointment of an advocate commissioner is necessary. The object in appointing the advocate commissioner is to survey the lands of the parties in Sy.No.30, but not to ascertain or cause any enquiry as to who is in possession of which property. Therefore, it does not amount to collection or fishing of evidence. Of course, the Commissioner cannot be directed to ascertain which party is in possession of which survey number. That aspect has to be established by the parties with the aid of the evidence to be let in during the course of trial.

 12 In Shameem Begum vs. Vennapusa Chenna Reddy and Another2 it was held that: The impugned dismissal order of the lower Court, under a mistaken impression and without even reading properly the Order 1 2015 (2) ALT 484 2 2018 (2) ALD 297 XXVI Rule 9 and Section 75 C.P.C., says the purpose of appointment of an advocate Karre Narsimulu vs Gaddamidi Diddaiah And 11 Others on 21 January, 2021 Indian Kanoon - http://indiankanoon.org/doc/82274002/ 4 commissioner sought to note down the physical features regarding possession of property cannot be allowed as a party cannot be allowed to fish out evidence by appointment of a commissioner. The lower Court did not even notice the distinction between fishing out information (which is not permissible) and collection of evidence (which is permissible). What is prohibited of fish out information by commissioner is X or Y stated to him at the time of inspection A or B in possession and the like. It is not prohibited of apparently visible physical features (which is even collection of evidence).

 13 In Smt. P. Sreedevi vs. IVLN Venkata Lakshmi Narasimha Prasad3 a Division Bench of this Court by following the principle laid down in Haryana Waqf Board v. Shanti Sarup4, Badana Mutyalu and Ors. vs. Palli Appalaraju5 and Jajula Koteshwar Rao vs. Ravulapalli Masthan Rao6 held that if it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC. 

14 Further, the finding of the appellate Court that the petitioners have not taken any steps to file an application at an earlier stage and that they approached with the application for appointment of advocate commissioner at a belated stage is incongruous. Appeal is continuation of suit but not a different proceeding. In the present case, the trial Court itself in its judgment observed that the parties to the suit would have resorted to get their lands surveyed by a surveyor. 

15 Having regard to the facts and circumstances of the case and the principle enunciated in the case cited supra, I am of the 3 2020 (4) ALT 433 (DB) (TS) 4(2008) 8 SCC 671 5(2013) 5 ALD 376 6 2015 (6) ALD 483 considered opinion that the impugned order is not sustainable either in law or on facts. Hence the same is liable to be set aside. 

16 In the result, the Civil Revision Petition is allowed setting aside the order dated 12.10.2020 passed in I.A.No.777 of 2019 in A.S.No.20 of 2015 on the file of the Court of the VIII Additional District Judge, Medak. No order as to costs. Miscellaneous petitions, if any, pending in this Civil Revision Petition shall also stand dismissed. __________________________

 T. AMARNATH GOUD, J. Date:21.01.2021. L.R. Copy to be marked B/o Kvsn Karre Narsimulu vs Gaddamidi Diddaiah And 11 Others on 21 January, 2021 Indian Kanoon - http://indiankanoon.org/doc/82274002/ 5