HON’BLE SRI JUSTICE A.V.SESHA SAI
CIVIL REVISION PETITION No.4075 of 2014
Date : 19-12-2014
Between:
Sankeypally Sathyanarayana Reddy, S/o.Krishna Reddy, 61 years, Occ: Agriculture, R/o.Thirumalagiri village & Mandal, Nalgonda District.
… Petitioner/Defendant and Kandukuri Nagarjuna, S/o.Somaiah, 45 years, Occ: Business, R/o.Thirumalagiri village & Mandal, Nalgonda District.
… Respondent HON’BLE SRI JUSTICE A.V.SESHA SAI CIVIL REVISION PETITION No.4075 of 2014
ORDER:
This civil revision petition, filed under Article 227 of the Constitution of India by the plaintiff in O.S.No.29 of 2013 on the file of the Court of Junior Civil Judge, Thungathurty, Nalgonda District, calls in question the order dated 27.10.2014, dismissing the I.A.No.179 of 2013 in I.A.No.112 of 2013 filed by the plaintiff/petitioner herein under the provisions of Order 26 Rule 9 r/w Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) for appointment of the Commissioner.
Heard Sri V.Ravi Kiran Rao, learned counsel for the petitioner and perused the material available before the Court. Despite service of notice, none appears for the respondent.
The facts and circumstances leading to filing of the present revision are as follows:
The petitioner herein instituted O.S.No.29 of 2013 on the file of the Court of Junior Civil Judge, Thungathurthy, Nalgonda District against the respondent herein for perpetual injunction in respect of the suit schedule land, admeasuring 215 square yards of open place situated in Sy.No.470 of Thirumalagiri village and mandal, Nalgonda District. Resisting the plaint averments, the defendant/respondent herein filed a written statement. In the said suit, in I.A.No.112 of 2013, the Court below granted interim injunction on 17.06.2013 and the same is subsisting. In the said I.A.No.112 of 2013, the plaintiff/petitioner herein filed the present I.A.No.179 of 2013 under Order 26 Rule 9 of the Code, seeking appointment of commissioner for local investigation of the petition schedule property to ascertain the measurements and to note down the physical features of the petition schedule property. The defendant/ respondent herein filed a counter, opposing the said application for appointment of the commissioner. The learned Junior Civil Judge by virtue of an order dated 27.10.2014 dismissed the said application.
Calling in question the validity and the legal sustainability of the said order, the present revision has been filed by the plaintiff in the suit. Challenging the legal substantiality of the order impugned, it is contended by the learned counsel for the petitioner that the order under challenge in the present revision is erroneous, contrary to law and opposed to the very spirit and object of the provisions of Order 26 Rule 9 of the Code. It is further contended by the learned counsel that in view of the dispute with regard to the identity of the property and to find out the exact location of the land, it is highly expedient to appoint advocate commissioner for the purpose of ascertaining the reality which will be helpful for adjudication of the issue in the suit. It is nextly contended that the Court below did not properly consider the averments in the affidavit filed in support of the application and the Court below is incorrect in dismissing the application on the ground that the same would tantamount to collection of evidence. It is eventually submitted by the learned counsel for the petitioner that the reasons assigned by the Court below are neither sustainable nor tenable in the eye of law. To bolster his submissions, the learned counsel for the petitioner places reliance on the judgments of this Court in Velaga Narayana and others v. Bommakanti Srinivas and others, Mallikarjuna Srinivasa Gupta v. K.Sheshirekha, Mohammed Mahmood Ali v. Municipal Council, Suryapet, Nalgonda District, rep. by Commissioner/Special Officer and others and Varala Ramachandra Reddy v. Mekala Yadi Reddy and others.
In the above backdrop, now the question that emerges for consideration by this Court is, whether the order passed by the Court below is in conformity with the provisions of Order 26 Rule 9 of the Code or whether the same warrants interference of this Court under Article 227 of the Constitution of India?
It is an admitted reality that the relief sought in the main suit is perpetual injunction in respect of the land, admeasuring 215 square yards situated in Sy.No.470 of Thirumalagiri village and mandal, Nalgonda District. The case of the petitioner/plaintiff is that the suit schedule property is his ancestral property and he got the same from his father in a family partition 25 years back and the suit schedule property is a part and parcel of a total extent of Ac.0-38 gts in Sy.No.470. It is also the case of the plaintiff/petitioner herein that in all the relevant revenue records, his name is entered as pattedar and possessor and actual cultivator and that the authorities issued pattadar passbooks and title deeds in his favour under the provisions of the A.P.Rights in Land Pattadar Pass Books Act, 1971. On the contrary, in the written statement filed by the respondent/ defendant, it is his case that originally the land, admeasuring 229 square yards in Sy.No.470 of Thirumalagiri village belonged to Bukka Somaiah, son of Ramaiah and Irikulla Gopi, son of Sathyanarayana, who jointly purchased the same from Bommidi Pichaiah, son of Somaiah, resident of Thirumalagiri village, by way of a registered sale deed dated 18.01.1992. It is the further case of the defendant/respondent herein that after the death of Bukka Somaiah, his daughters and Irikulla Gopi sold away the land to him by way of a registered sale deed bearing No.5411/2013 dated 13.05.2013. A reading of the boundaries given in the plaint schedule and the boundaries furnished in the written statement shows that there is a dispute with regard to identity of the property. Obviously, keeping in view of the said aspect, the plaintiff/petitioner herein filed the present application. A perusal of the order impugned in the present revision clearly and categorically discloses that the learned Junior Civil Judge did not take into consideration all these aspects while adjudicating the application filed under Order 26 Rule 9 of the Code. A reading of the impugned order further shows that the only ground assigned by the learned Junior Civil Judge is that in the event of allowing the application, the same would tantamount to collection of evidence. The reasons assigned by the learned Junior Civil Judge, in the considered opinion of this Court, are highly unsustainable and not in consonance with the settled proposition of law.
In this context, it may be apt appropriate to refer to the judgments cited by the learned counsel for the petitioner as under:
In Velaga Narayana’s case (1 supra), this Court held that:
"11. Here is a case, wherein, there is a dispute with regard to the identity of the subject-matter of the suit. Though there is a report by the Mandal Surveyor, the said report is disputed by the petitioners and they assert that the survey has to be conducted in the presence of a Commissioner appointed by the Court in the pending suit.
12. The Tahasildar also addressed a letter to the Assistant Director of Survey and Land Records, Warangal requesting to conduct resurvey by the Deputy Inspector of Survey and Land Records. Therefore, a genuine dispute exists between the parties in relation to the identity of the subject-matter of the suit. If the petitioners seek appointment of a Commissioner for demarcating the land, in the aforesaid circumstances, I do not think that it is with a view to fish out some evidence. They are claiming title and possession in respect of the plaint schedule plots under registered sale deeds. It is not the case of the respondents/defendants that the petitioners do not have any land at all. Their contention is that their land is elsewhere and they are falsely claiming the land of the respondents/defendants. Thus, there is a genuine dispute in relation to the identity of the subject-matter of the suit. The said dispute can be completely and effectively resolved only by appointment of Commissioner.
13. Under Rule 9 of Order 26 in any suit in which the Court deems a local investigation is necessary or proper for the purpose of elucidating any matter in dispute, it can issue a commission. Though issuing commission is discretionary, the Court has to exercise discretion in an appropriate and judicious manner. The purpose and object of local investigation under Rule 9 is to have the evidence from the spot itself to have a correct and proper understanding of the dispute between the parties. The local investigation report submitted by the Commissioner enables the Court to make a correct assessment of evidence on record. When the Court is of the opinion that the material on record requires elucidation, it would be just and reasonable to issue a commission for the said purpose. A commission at the instance of one of the parties to find out as to who is in possession of the property cannot be issued as it enables the party seeking appointment of Commissioner to collect or gather evidence. But, where there exists a dispute regarding the identity of suit property, the Court has to necessarily issue a commission with the assistance of a Surveyor, otherwise, it would be highly difficult for the Court to completely and effectively resolve the dispute and issuing such commission would not amount to collection of evidence. Commission for the said purpose can be issued prior to or after the parties let in their evidence.
14. In the instant case, I am of the view that the appointment of Commissioner for the purpose of localizing the suit lands is necessary and the learned trial Court erroneously rejected the request of the petitioners for appointment of the Commissioner."
In Mallikarjuna Srinivasa Gupta’s case (2 supra), this Court held that:
"7. The learned Counsel for the petitioner relied on a judgment in Pandiri Pedda Sidaiah and others v. Thirunagiri Padmavathi, 1997(5) ALD 430, wherein, the learned Single Judge while considering the scope of Order 26 C.P.C., observed that the issue can be effectively settled by getting the lands owned by the petitioners as well as the respondent surveyed by the revenue authorities with the help of a village map and also tippons if they are available with the revenue authorities. By doing so, the litigation can be put to an end. But the Subordinate Judge by taking a technical ground dismissed the application which is not in accordance with law."
In Mohammed Mahmood Ali’s case (3 supra), this Court held that:
"7. This Court admitted the C.R.P. on 25-4-2008 and granted interim stay in C.R.P.M.P.No.2337/2008. The certified copy of the order dt. 20-4- 2006 made in I.A.No.26/2006 in O.S.No. 146/2005 was placed before this Court. The said application was filed under Order XXVI Rule 9 read with Section 151 of the Code praying for appointment of Commissioner to conduct survey and to find out whether the suit land viz., Ac.2-20 gts of dry land in Sy.No.14 of Suryapet town is part and parcel of Sy.No.14 or Sy.No.35 and submit report with specific location, extent, physical features and existing structures thereon. The Municipal Council, Suryapet represented by its Commissioner/Special Officer alone was the party then as respondent-defendant. The said application was resisted. After recording reasons, the learned Junior Civil Judge, Suryapet, having observed that there is no merit in the petition, dismissed the same, but however, opined that the petitioner to file fresh application in respect of suit land at an appropriate stage by duly making the Department of Culture, Government of A.P. as one of the parties which is presently in possession and enjoyment of Ac.2-00 land in Sy.No.35 abutting the suit land intervened by drainage canal. It is brought to the notice of this Court that the Government of A.P. and the Director of Cultural Affairs, Department of Youth Advancement Tourism and Culture, Government of A.P., were impleaded as parties – respondents 2 and 3/defendants 2 and 3 respectively. Hence, in the light of the liberty given by the learned Junior Civil Judge, Suryapet, by order dt. 20-4-2006, it cannot be said that an application for appointment of Commissioner is not maintainable. It may be that this is a second application, but the second application had been filed after impleading those parties as defendants in the suit and in the light of the liberty granted by the learned Junior Civil Judge, Suryapet, already referred to above. In the light of the respective stands taken by the parties, the dispute appears to be whether the plaint schedule property is located in Sy.No.14 or Sy.No.35. The specific case of the petitioner is that the 1st respondent made an attempt to encroach upon his properties and hence he was constrained to file the suit. When the dispute is a boundary dispute and the exact location of the land, it is needless to say that the measurements are to be taken with reference to the revenue records, if possible with the assistance of a Surveyor or preferably a survey knowing Commissioner, as the case may be. The learned counsel representing the Revision Petitioner placed strong reliance on D.Vidya Sagar Rao v. Smt. K.Indra Devi 2004(2) ALT 689, Chukka Venkatadri and another
v. Mallavarapu Mahalakshmamma 2006(3) ALT 353 = 2006(3) ALD 87 and Mallikarjuna Srinivasa Gupta v. K.Shashirekha 2006(4) ALT 162 = 2006(3) ALD 362 to substantiate his case that in a case of this nature, it would be just and proper to appoint a Commissiioner for the purpose of localization or identification of the dispute property. There cannot be any two opinions in relation to the proposition of law which had been laid down in the aforesaid
decisions."
In Varala Ramachandra Reddy v. Mekala Yadi Reddy’s case (4 supra), this Court held that:
"9. As seen from the counter filed by the respondents herein resisting the application seeking appointment of the Commissioner, they specifically pleaded that the plaintiff land is a wet land and it is at lower level and whereas the land owned by 1st defendant is a dry land and it is at upper level. For better appreciation, I may refer the relevant portion of the counter filed by the respondents/ defendants, which reads as under:
'… Further it is submitted, the boundary line between our land and land of petitioner/plaintiff is too long and only a small portion of our dry land was converted into wet and allegation of the petitioner/plaintiff that by encroaching into the suit land by removing boundary fencing, a part of land is converted into wet is false. Further it is false to say, we have disturb the boundary during the pendency of the suit and boundary line of petitioner/plaintiff is in the shape of wet land and our land is dry land which is at upper level and their land is at lower level and there is no chance of encroaching into once land by other. It seems that petitioner/plaintiff purchased land from his vendor as per revenue record without measurement before registration and now he is trying to locate his land as per record under the guise of Advocate Commissioner. As a matter of fact, much prior to purchase of suit land by plaintiff his land abutting our land is wet land, which is at lower level and our land is dry land at upper level, and accepting the said boundary, the plaintiff purchased the suit land from its vendor and came into possession and now plaintiff wants to demarcate his land as per record with a mala fide intention to encroach into our possessed land, which is not permissible under law.'
It is evident from the counter that the defendants have specifically pleaded that the land of the plaintiff is at lower level and whereas their land is at upper level. Even to make an observation of the level of the lands as claimed by the parties, a Commissioner needs to be appointed."
A perusal of the impugned order clearly and categorically shows that the learned Junior Civil Judge had no occasion to refer to the above pronouncements. It is also relevant to note, at this juncture, that there is no absolute bar on appointment of Commissioner in a suit for injunction. Since the Court below did not assign any proper and cogent reasons and as the learned Junior Civil Judge did not consider the averments in the affidavit filed in support of the application, this Court deems it appropriate to set aside the impugned order and to remand the matter to the learned Junior Civil Judge for fresh consideration in accordance with law and keeping in view the principles laid down in the above referred judgments.
For the aforesaid reasons, the civil revision petition is allowed, setting aside the impugned order dated 27.10.2014 passed in I.A.No.179 of 2013 in I.A.No.112 of 2013 in O.S.No.29 of 2013 on the file of the Court of Junior Civil Judge, Thungathurthy, Nalgonda District, and the I.A.No.179 of 2013 is remanded to the Court below for fresh consideration after giving opportunity of hearing to both sides, within a period of one month from the date of receipt of a copy of this order. No order as to costs.
As a sequel, miscellaneous petitions, if any pending in this civil revision petition, shall stand closed.
A.V.SESHA SAI, J Date: 19.12.2014
Note: Issue cc in one week. siva
HON’BLE SRI JUSTICE A.V.SESHA SAI CIVIL REVISION PETITION No.4075 of 2014 Date : 19-12-2014 siva