Keesari Srinivas vs Mohammed Magdoom Pasha

Heard Mr. P.S.P. Suresh Kumar, learned counsel for the petitioners and Mr. M.V. Hanumantha Rao, learned counsel for respondent Nos.1 and 2.

In view of the nature of relief sought in this revision, the same is disposed of by dispensing with notice to respondent Nos.3 and 4.

Assailing the order dated 19.12.2022 passed in I.A. No.1098 of 2022 in O.S. No.44 of 2017 by learned V Additional District Judge, Nalgonda District at Miryalaguda, the petitioners herein have filed the present revision.

The petitioners herein and respondent Nos.3 and 4 are the defendants, while respondent Nos.1 and 2 are the plaintiffs in O.S. No.44 of 2017. For the sake of convenience, the parties will be referred as arrayed in O.S. No.44 of 2017.

Originally, respondent Nos.1 and 2 - plaintiffs have filed a suit vide O.S. No.44 of 2017 seeking perpetual injunction restraining the defendants therein, their men etc., from interfering with their possession and enjoyment over the suit schedule property.

During pendency of the said suit, the petitioners - defendant Nos.3 to 6 herein have filed an interlocutory application vide I.A. No.1098 of 2022 under Order - XXVI, Rule - 9 read with Section 151 of the Code of Civil Procedure, 1908, seeking to appoint an Advocate Commissioner to measure and fix up boundaries stones to the respondents herein - plaintiffs land admeasuring Ac.0-33 guntas each in Survey Nos.885 and 885/A4, situated at Miryalaguda Revenue Village and Mandal, as per the title documents, revenue records and boundary bunds of the plaintiffs, on the following grounds:

i) The plaintiffs are in possession of their purchased land and defendant Nos.3 to 6 are in possession and enjoyment of their land. Both are adjacent to each other. There is boundary dispute between them.

ii) During cross-examination, PW.1 stated that he got constructed compound wall to the entire suit schedule land. But, between the land of defendant Nos.3 to 6 and the plaintiffs, compound wall is not constructed by the plaintiffs.

iii) The plaintiffs have no manner of any right, title and possession over the land admeasuring Acs.1-16 guntas in Survey No.886 and Ac.1-00 guntas in Survey No.896, making a total extent of Acs.3-12 guntas, situated at Miryalaguda Town and Mandal.

iv) The plaintiffs are claiming that they are the owners of the land admeasuring Ac.0-33 guntas each in Survey Nos.885 and 885/A4, making a total extent of Acs.1-26 guntas.

v) In view of the above, defendant Nos.3 to 6 sought to appoint Advocate Commissioner to measure and fix up the boundary stones.

The said application was opposed by the plaintiffs on the following grounds:

i) Defendant Nos.3 to 6 have no lands as alleged in the petition and their father had already sold away the entire land long back. The purchasers have already constructed houses in their respective plots. The defendants have no land adjacent to the land of the plaintiffs. They have not filed single document to show that they are in possession of the land as alleged in the written statement.

ii) The father of defendant Nos.3 to 6, Mr. Keesari Saidaiah, had executed a General Power of Attorney bearing document No.21 of 1976, dated 13.09.1976 in favour of one Mr. Dabbikar Somoji in respect of their lands. The GPA Holder had sold away the aforesaid property by dividing into plots. The Purchasers have already constructed houses in their respective plots. Even then, defendant Nos.3 to 6 are trying to interfere with the possession of the purchasers under the guise of injunction order obtained by them against the purchasers by misrepresentation of facts. An appeal vide A.S. No.10 of 2006 was allowed on 23.02.2007 setting aside the decree passed by the trial Court in the aforesaid suit. Second Appeal is pending. Therefore, the petitioners are trying to collect evidence.

The trial Court after hearing both sides, dismissed the said application vide order dated 19.12.2022 on the following grounds:

i) It is not the case of the plaintiffs that any of the defendants have encroached upon their lands to any extent. It is also not the case of defendant Nos.3 to 6 that the plaintiffs have occupied their alleged land to any extent, nor there is a dispute regarding identity of the suit schedule lands.

ii) The only issue to be decided in the suit is whether the defendants have interfered with the possession and enjoyment of the plaintiffs over the suit schedule lands.

iii) Defendant Nos.3 to 6 have not stated any satisfactory reasons for appointment of an Advocate Commissioner.

Challenging the aforesaid order, defendant Nos.3 to 6 filed the present revision.

Learned counsel for defendant Nos.3 to 6 would submit that no prejudice would be caused to the plaintiffs in the event of appointment of Advocate Commissioner.

i) He would submit that defendant Nos.3 to 6 came to know about purchase of certain lands belonging to the families of Mittapally Ramalingaiah and Shankaraiah of the plaintiffs, when the plaintiffs started claiming about the same. At that time itself, the defendants informed the plaintiffs that they should maintain the same boundary line in between the land of the defendants and the land intending to purchase by the plaintiffs from the family of Mittapally surname as the said boundary line is in existence since several years and the plaintiffs have also promised at that time that they would not disturb the existing boundary line.

ii) Thus, in order to decide the boundary line, appointment of an Advocate Commissioner is just and necessary. The said facts were not considered by the trial Court.

On the other hand, Mr. M.V. Hanumantha Rao, learned counsel for the plaintiffs, would submit that the suit filed by the plaintiffs is for perpetual injunction, and it is for them to establish their prima facie title over the suit schedule property and possession over the same. Therefore, defendant Nos.3 to 6 cannot seek appointment of an Advocate Commissioner and it is nothing but collection of evidence which is impermissible. The said facts were considered by the trial Court while dismissing the petition filed by defendant Nos.3 to 6. There is no error in it.

In view of the above rival submissions, it is apposite to refer to Order - XXVI, Rule 9 of the CPC. It deals with ‘Commissions to make local investigations’, and it says that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.

In view of the aforesaid law laid down by this Court, coming to the facts of the case on hand, as discussed above, defendant Nos.3 to 6 have filed the aforesaid I.A. No.1098 of 2022 in O.S. No.44 of 2017, seeking appointment of Advocate Commissioner to measure and fix up the boundary stones to the plaintiffs land as per the documents, on the ground that there is boundary dispute between them; during cross-examination, PW.1 admitted that he got constructed compound wall to the entire suit land. Between the lands of defendant Nos.3 to 6 and the plaintiffs, compound wall is not constructed by the plaintiffs. The plaintiffs got only old pattadar pass books and title deeds over the suit schedule land.

As discussed above, the plaintiffs filed the aforesaid suit for perpetual injunction restraining the defendants from interfering with their possession over the suit schedule property. Burden lies on the plaintiffs to establish their prima facie title and possession over the suit schedule property. If there is admission by PW.1 to a particular effect, the defendants have to make their submissions referring to the said admission. Just because there is an admission made by PW.1 during cross-examination, they cannot seek appointment of a Commissioner by filing an application under Order - XXVI, Rule - 9 of the CPC. It is for the Court to decide whether to appoint an Advocate Commissioner or not for the purpose of local investigation so as to elucidate any matter in dispute, whereas, in the present case, defendant Nos.3 to 6 are seeking appointment of an Advocate Commissioner.

As rightly held by the trial Court, it is not the case of the plaintiffs that any of the defendants have encroached upon their land to any extent. It is also not the case of the defendants that the plaintiffs have occupied their alleged land to any extent. Only there is dispute with regard to identity of the said land. There is no error in the said finding in the impugned order. Defendant Nos.3 to 6 have filed the aforesaid I.A. No.1098 of 2022 seeking appointment of a Commissioner without mentioning satisfactory reasons. Therefore, they are not entitled for the said relief. The impugned order is a reasoned order and does not warrant any interference by this Court invoking its supervisory powers under Article - 227 of the Constitution of India. In view of the same, the revision fails and is liable to be dismissed.

The present Civil Revision Petition is accordingly dismissed confirming the order dated 19.12.2022 passed in I.A. No.1098 of 2022 in O.S. No.44 of 2017 by learned V Additional District Judge, Nalgonda District at Miryalaguda. However, there shall be no order as to costs.

As a sequel, the miscellaneous petitions, if any, pending in the revision shall stand closed.