Syed Mannan VsV Hemalatha

1 Aggrieved by the order dated 10.8.2018 passed in I.A.No.704 of 2018 in L.G.O.P.No.776 of 2003 on the file of the Court of the VIII Additional District Judge, Ranga Reddy District, wherein and whereby the application filed for appointment of advocate commissioner to inspect the property in possession of the respondent as is claimed and to make measurements of plots commencing from Plot No.557 onwards up to Plot No.569-1/A, was dismissed.

2 The case of the petitioner is that he is claiming the property in Plot No.568/1-A admeasuring 200 sq. yards and the respondent claims 529.99 sq. yards in plot No.567 and 568 of the same layout. It is the further case of the petitioner that the respondent is holding land more than her entitlement inasmuch as it is the claim of the respondent that she has purchased land in Plot No.567 and 568 admeasuring 529.99 sq. yards, which is covered by a registered sale deed with specific boundaries.

3 The respondent filed her counter opposing the claim of the petitioner stating that earlier seeking the same relief the petitioner has filed a similar application and that petition was dismissed. She further submitted that the case property is a non-existing one and prayed to dismiss the petition.

4 On appreciation of the evidence available, the trial Court dismissed the petition observing that the object of Order 26 Rule 9 CPC is not to assist a party to collect evidence where the party can procure the same and that localization of the property is not the purpose for which an advocate commission can be appointed.

5 It is pertinent to note that the petitioner claims that his property is situated in Plot No.568/1-A and that the property of the respondent falls in Plot Nos.567 and 568 of the same layout. 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.

6 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).

7 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.

8 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 allowed, setting aside the order dated 10.8.2018 passed in I.A.No.704 of 2018 in L.G.O.P.No.776 of 2003 on the file of the Court of the VIII Additional District Judge, Ranga Reddy District. No order as to costs.

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