THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.2935 of 2012 Date: 09-07-2014 Between :- U.Naseem … Petitioner.
And
1. B.Asif Basha and another … Respondents.
Counsel for the petitioner : Sri K.Somakonda Reddy Counsel for respondents : Sri Vijaya Bhaskar Moola This Court made the following :-
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.2935 of 2012 ORDER:
This Revision is filed challenging the order dt.11-04-
2012 in I.A.No.81 of 2012 in O.S.No.165 of 2011 of the Junior Civil Judge, Tadipatri.
2. The petitioner is defendant in the suit. The respondents filed the suit against petitioner to restrain her from laying R.C.C. sun shade into the plaint schedule property which is alleged to be an open space on its north and also from interfering with the peaceful and lawful possession of the plaint schedule property. The plaint schedule property is an open space situated in Tadipatri Municipal area near D.No.5/34.
3. The respondents/plaintiffs contended that under a registered gift deed dt.14-10-1998 this property along with other properties was gifted to them when they were minors and they were represented by their father by name B.Jeelani Basha. They alleged that the petitioner/defendant is attempting to put up a RCC slab for her new house which is being constructed in the adjacent property and that she is making preparations by erecting wooden structures by projecting 3 feet into the open space which is described in the plaint schedule to lay a sun shade and thus encroaching into the plaint schedule property.
4. The petitioner/defendant filed a written statement contending that the open space mentioned in the plaint plan was not subject matter of the gift deed dt.22-05-1961 in favour of the vendors of Syfuddin Sab, who had in turn gifted the property to the minor plaintiffs. She contended that the vacant site claimed by plaintiffs was being used as a rastha by the past owners, the plaintiffs and defendant to approach the eastern side rastha through the existing pathway and also to reach the main road situated on the southern side of defendant’s house. She disputed the plaint plan and further contended that the vacant site shown in the plaint plan belongs to Tadipatri Musicality and there is an underground drainage system in the said area which was suppressed by plaintiffs in their pleadings and in the plaint plan. She contended that the plaintiffs have no exclusive title or right or possession over the open place mentioned in the plaint schedule and the same was being used as a lane. She further contended that if the sun shade is not erected, the verandah of her house would be affected with rainfall and sun light.
5. Issues were framed and trial commenced. The suit is now coming up for cross-examination of P.W.1.
6. The petitioner filed I.A.No.81 of 2012 under Order XXVI Rule 9 C.P.C. seeking appointment of an Advocate- Commissioner to inspect the suit locality and submit a report to the trial Court with regard to the following points:
“1. Whether ‘B’ & ‘C’ marked open places shown in the plain plan is exclusively belongs to Tadipartri Municipality or not?
2. Whether there is a Tadipatri Municipality under ground drainage system is in existence in ‘B’ & ‘C’ marked open places or not?
3. Whether one of the doorways of house of Mahammad Shareef and Mahammad Hussain opened into the ‘C’ marked open place or not?
4. Whether a doorway opened into the eastern side lane rasta from the ‘B’ marked open place?
5. Whether the house of petitioner and the houses of respondent are having only doorways towards southern side into the ‘B’ marked open place or not?
6. Whether the proposed 2 feet R.C.C. sun shade towards southern side of the house of defendant is creating any nuisance or loss to the respondents?
7. And to note other physical features which will brought to the notice of Commissioner by defendant at the time of local inspection.”
7. She contended that it is necessary to elucidate the matter in dispute and reduce the oral evidence and an Advocate-Commissioner be appointed to submit a report to the Court by inspecting the suit locality with the help of a Municipal Surveyor.
8. Counter affidavit was filed by respondents opposing the appointment of Advocate-Commissioner contending that appointment of Advocate-Commissioner is being sought by the petitioner for collection of evidence and it is not permissible.
9. By order dt.11-04-2012, the trial Court accepted the said objections raised by respondents and held that appointment of an Advocate-Commissioner in the facts and circumstances of the case would amount to enabling the petitioner to collect evidence with the assistance of the Court and that this is not permissible. It further held that petitioner has to prove her case by producing oral and documentary evidence on her behalf instead of seeking assistance from the Court.
10. Challenging the same, this Revision is filed.
11. Heard Sri K.Soma Konda Reddy, leaned counsel for petitioner and Sri Vijaya Bhaskar Moola for respondents.
12. The learned counsel for petitioner submitted that the order of the trial Court is erroneous and is unsustainable; that the trial Court erred in holding that the purpose of seeking appointment of Advocate- Commissioner to inspect the suit locality is collection of evidence; that the nature of dispute in the suit being the right of the petitioner to erect an RCC sun shade on the verandah of petitioner’s house and whether such erection would cause any nuisance or inconvenience to petitioner, the appointment of an Advocate-Commissioner would assist the Court in deciding it. He further contended that the object of local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its very peculiar nature can only be had on the spot, and therefore the impugned order be set aside and I.A. No.81 of 2012 be allowed.
13. The learned counsel for respondents, however, contended that the order of the trial Court is correct and that the petitioner cannot be permitted to collect evidence by getting the Advocate-Commissioner appointed through Court and she can as well prove her case by leading oral and documentary evidence. He also relied upon the judgment of this Court in A. Gopal Reddy
[1]
Vs. R.Subramanyam Reddy and another .
14. I have noted the submissions of the counsel on both sides.
15. In the suit, the issue to be decided is whether the erection of RCC slab as a sun shade in the verandah of the petitioner would cause any nuisance or inconvenience to the respondents/plaintiffs. The nature of the dispute is therefore such that evidence either way can only be had on the spot. It is settled law that the object of local investigation is not so much to collect evidence, which can best be taken in the Court, but to obtain evidence, which from its very nature can only be gathered on the spot, that the local investigation by a Commissioner is merely to assist the Court and said report is not binding on the Court, which can arrive at its own conclusion on the basis of the evidence on record in variation to such a report [D.Sambasiva Rao Chowdary Vs.
R.Kamashastry and others (2004(4) ALD 858) and (In re P.Moosa Kutty (AIR 1953 Madras 717)].
16. In my opinion, appointment of an Advocate- Commissioner in the facts and circumstances of the case, would facilitate the adjudication of the issues raised in suit and would meet the ends of justice.
17. In the application I.A.No.81 of 2012 filed by petitioner, she had sought the appointment of an Advocate-Commissioner to inspect the suit locality and to submit a report on 7 points mentioned above. Except point No.1, which dealt with the title to the open place ‘B’ and ‘C’ shown in the plaint plan, the rest are aspects which the Advocate-Commissioner can be asked to inspect and report to the Court. As far as title to the open place marked ‘B’ and ‘C’ in the plaint plan are concerned, Advocate-Commissioner cannot be directed to collect evidence on it and is open to both sides to prove their respective pleas.
18. In A.Gopal Reddy (1 supra), this Court held that it is not proper to file an application for appointment of Advocate-Commissioner in a suit for injunction in respect of vacant land to note down the existing features on the ground that it would amount to appointing an Advocate- Commissioner to gather evidence as to the possession of the properties to the suit. This case is clearly distinguishable since the facts of the present case indicate that the nature of dispute is entirely different i.e. to ascertain whether erection of RCC slab sun shade in the verandah of the petitioner would cause any nuisance or inconvenience to the respondents. Therefore, the said decision has no application.
19. Therefore I am of the opinion that the trial Court erred in dismissing I.A.No.81 of 2012 by holding that it is an attempt to collect evidence by the petitioner. Therefore, the Civil Revision Petition is allowed, the order dt.11-04-2012 in I.A.No.81 of 2012 is set aside, the said I.A. is allowed and the trial Court is directed to appoint an Advocate-Commissioner to inspect the suit locality to submit a report on point Nos.2 to 7 mentioned in the said application only. No costs.
20. Miscellaneous applications pending if any, in this Civil Revision Petition shall stand closed.
JUSTICE M.S.RAMACHANDRA RAO
Date: 09-07-2014
vsv
[1] 2013 (4) ALD 347