Sripathi Laxmi Devi VsBojja Indiramma And 9 Others

1 Aggrieved by the order dated 26.10.2018 passed in I.A.No.695 of 2017 in O.S.No.52 of 2015 on the file of the Court of the Principal Senior Civil Judge, Mahabubnagar, wherein and whereby the application filed by the defendant Nos.8 to 10 therein for appointment of advocate commissioner for making the spot inspection and for conducting survey of lands, was allowed.

2 Petitioner herein is plaintiff in the suit and respondent Nos.1 to 3 are defendant Nos.8 to 10 in the suit.

3 Respondent Nos.1 to 3 filed I.A.695 of 2017 before the trial Court stating that they filed a petition before the Tahsildar, Amangal Mandal for survey of land in Sy.No.1404, but the petitioner / plaintiff filed objection petition to stop the demarcation and fixing of boundaries for Sy.Nos.1404 and 1405 of Amangal Village and basing on the objection petition, the Tahsildar, Amangal Mandal issued an endorsement stating that the survey is being stayed till the disposal of the suit. They further submitted that the suit schedule property must be localized and be identified as to whether it comes in Sy.No.1404 and 1405 and unless and until the survey is conducted for both survey numbers, the real facts would not come to light.

4 The petitioner / plaintiff filed her counter opposing the claim of the petitioner stating that the respondents/defendants do not have land in Sy.No.1404 to any extent as they sold their lands to others, the petitioner / plaintiff constructed house in an extent of 5 ½ guntas and thereafter purchased 5 ½ guntas and she is the owner of 11 guntas in which house of the petitioner is located in Sy.No.1405 and hence, the Sy.No.1405 is also not liable to be demarcated.

5 On appreciation of the evidence available, the trial Court allowed the petition observing that if at all the advocate commissioner is not appointed, certainly, the lawful right of the defendants will be defeated and on the other hand if the advocate commissioner is appointed no prejudice would be caused to the plaintiff.

6 It was held in Arvind Kumar Agarwal vs. Legend Estates (P) Ltd., rep. by its Managing Partner, Kokapet Village, Ranga Reddy District 2015 (2) ALT 484, that 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, 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.

7 In Shameem Begum vs. Vennapusa Chenna Reddy and Another 2018 (2) ALD 297 it was held that:

The impugned dismissal order of the lower Court, under a mistaken impression and without even reading properly the Order XXVI Rule 9 and Section 75 C.P.C., says the purpose of appointment of an advocate 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).

8 In Smt. P. Sreedevi vs. IVLN Venkata Lakshmi Narasimha Prasad 2020 (4) ALT 433 (DB) (TS) a Division Bench of this Court by following the principle laid down in Haryana Waqf Board v. Shanti Sarup (2008) 8 SCC 671, Badana Mutyalu and Ors. vs. Palli Appalaraju (2013) 5 ALD 376 and Jajula Koteshwar Rao vs. Ravulapalli Masthan Rao 2015 (6) ALD 483 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.

9 Having regard to the facts and circumstances of the case and also the principle enunciated in the cases cited supra, this Civil Revision Petition is dismissed, confirming the order dated 26.10.2018 passed in I.A.No.695 of 2017 in O.S.No.52 of 2015 on the file of the Court of the Principal Senior Civil Judge, Mahabubnagar. No order as to costs.

10 Miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand closed.