Boggarapuvenkatasubba Rao v. K.Srinivasa Reddy,

HON'BLE SRI JUSTICE S.V.BHATT C.R.P. No.314 OF 2017 ORDER:

Heard Mr.A.Tulsi Raj Gokul for petitioners.

The plaintiffs in O.S. No.60 of 2011 on the file of the Judge, Family Court, Kurnool, are the revision petitioners. The revision petitioners filed the suit for declaration of title and possession of plaint B schedule property. The petitioners filed I.A. No.175 of 2011 alleging that plaint A schedule property is in possession of petitioners and petitioners seek the relief of recovery of possession of plaint B schedule property from the respondents herein. For the purpose of delineating these two different parcels of area viz. as plaint A and B schedules, it is alleged that it is necessary to note down the physical features before they are tampered. Any amount of oral evidence will not be useful if the physical features are tampered.

Hence, the petitioners pray for appointment of Advocate Commissioner for local inspection of suit site to measure the plaint A and B schedule properties separately, fix the boundaries and submit report with plan of suit schedule property. The respondents opposed the appointment of Advocate Commissioner for local inspection. One of the primary objections is that there is nothing like plaint A and B schedule properties and the instant application is filed to collect evidence through local inspection by Advocate Commissioner which is impermissible under law and prayed for dismissing the I.A.

The Court below after considering the material available on record, through order dated 27.07.2016 dismissed the application. Hence the revision.

Mr. Tulsi Raj Gokul vehemently contends that the trial Court has failed to properly appreciate its jurisdiction under Order 26 Rule 9 of Civil Procedure Code for the effort in the instant application is not to collect or gather evidence, the petitioners are aware of the burden they have to discharge in the matter which will be duly and properly discharged, and the effort through the instant application is only to enable the Court to properly appreciate the entire schedule and decide the lis between the parties effectively. He places reliance upon Jammi Venkata Krishna Rao v. Jammi Venkata Hanuma Ravindranath1 to contend that noting down features of property would enable the Court to understand the physical features of suit property as on the date of filing of the suit and to arrive at appropriate decision regarding the identity of property. Therefore, for that purpose, the Advocate Commissioner under Order 26 Rule 9 CPC can be appointed.

I have perused the material available on record and it is not disputed by the petitioners that one of the circumstances for discussion or decision in the suit is whether the plaint schedule consists of two schedules or one schedule; on this aspect each party has placed before the Court its respective pleadings. The 1 (2015 (5) ALD 429

trial Court upon considering the material recorded the following finding:

"On perusal of these two decisions, I, opine the facts on hand and the facts in those cases are similar and they are applicable to the present case also. As already stated the dispute is only with regard to title of the entire plaint A schedule property; and admittedly plaint B schedule property in respect of which declaration of title and recovery of possession is sought for, is only part and parcel of plaint A schedule property and it needs to be adjudicated with reference to the evidence to be adduced both by the petitioner and the respondent and there is no necessity to appoint a commissioner as prayed for. I, therefore, opine that there are no merits in the petition. The point is accordingly answered."

This Court is of the view that the trial Court which has full understanding of pleadings and issues for decision has exercised the discretion and rejected the prayer for appointment of Advocate Commissioner. The suit is for recovery of possession, the burden is on petitioners to prove their case and in my considered view, the appointment of Advocate Commissioner at this stage can be understood as an effort made by the petitioners to gather evidence in support of their plea that plaint schedule consists two parts viz. schedule A and schedule B. At any rate, once the burden of petitioners herein to show the existence of two schedules is accepted, the petitioners ought to discharge the burden dehors the way of appointment of Advocate Commissioner for local inspection. The revision petitioners failed to make out a case of interference. The decision relied upon by the learned counsel is distinguishable and I am not persuaded to follow the same for

granting the prayer in the I.A. For the above reasons, the revision fails and is dismissed. No order as to costs. Miscellaneous petitions pending, if any, shall stand closed. ___________ S.V.BHATT,J Date: 23.02.2017 Stp