Zia-Ur-Rahman, Warangal Dist v. M Bikshapathi Yadav, Hyderabad And ANR

THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI Civil Revision Petition No.214 of 2017 ORDER:

This civil revision petition, under Article 227 of the Constitution of India, by the unsuccessful petitioner-plaintiff is directed against the order, dated 02.12.2016, of the learned II Additional Senior Civil Judge, Ranga Reddy, passed in IA.No.875 of 2016 in I.A.No.811 of 2015 in O.S.No.1279 of 2015.

2.

I have heard the submissions of Sri Sai Baba Itapu, learned counsel for the petitioner-plaintiff, and of Sri J.Prabhakar, learned counsel for the 1st respondent-1st defendant. The 2nd respondent/ 2nd defendant is stated to be not a necessary party. I have perused the material record.

3.

The facts, which are necessary to be stated as a preface to this order, in brief, are as follows:

The plaintiff filed the suit against the defendants requesting to grant perpetual injunction restraining the defendants, their henchmen, agents and representatives from interfering with the plaintiff's peaceful possession and enjoyment over the suit schedule property situated at Madinaguda village, Sherilingampally Mandal, more fully described in the schedule annexed to the plaint. The defendants are resisting the suit by filing a written statement. The defendants are inter alia contending that the plaintiff has no locus standi to file the suit. In the pending suit, the 1st defendant filed the aforesaid interlocutory application for appointment of an advocate commissioner to note down the physical features of the petition schedule property and also to measure the actual extent of the land bounded by Tin sheets. The said petition was

resisted by the plaintiff by filing a counter. On merits and by the order impugned in this revision, the trial Court allowed the said petition. Therefore, the plaintiff is before this Court. 4.

The case of the 1st defendant, in support of the request for appointment of an advocate-Commissioner, in brief, is this: 'The 1st defendant is the owner and possessor of land admeasuring 1459.65 square yards covered by Plots in Survey Nos.228 & 229/ 1 of Madinaguda village, Serilingampally Mandal, Ranga Reddy District, having purchased the same from its owners through two registered sale deeds bearing Document No.1661/ 98, dated 12.09.1997, and Document No. 8505/ 2003, dated 07.07.2003. After purchase of the said property, he obtained permission from the then Sherilingampally Municipality, on 20.05.1998, for construction over a portion of the property and raised a structure comprising of two rooms. He employed the 2nd respondent as a watchman for watch and ward of the said property.

Since the conversion of the said land into plots was unauthorised, he approached the GHMC and accordingly, the GHMC regularised the land purchased by him by collecting requisite fee. He obtained electricity connection from the concerned authority and has been paying the electricity bills regularly. With a view to construct a multi-storied building, he approached the GHMC for permission for construction. He was accorded permission by the GHMC. Tin sheets were erected around the entire property purchased by him. Thus, he has been in possession of the total land admeasuring 1459.65 square yards covered by plots in Sy.Nos.228 & 229/ 1 of Madinaguda village, Serilingampally Mandal, Ranga Reddy District in his own right and the 1st respondent/ plaintiff has nothing to do with the same.

owners for a valuable consideration. The said property is regularised, after physical verification, under the Regularization Scheme. While he was making preparations for constructions after obtaining permission, the plaintiff has come up with the present suit only to harass and blackmail him with a view to extract money. No compound wall is existing around the property and it is a property with two rooms encircled by Tin Sheets. In the above stated background of facts, to ascertain the extent of land encircled by Tin Sheets by measuring the land bounded by Tin Sheets and to note down the physical features of the petition schedule property, it is just and necessary to appoint an Advocate Commissioner. If an Advocate Commissioner is not appointed, the 1st defendant will be put to irreparable loss and injury. 5.

The case of the plaintiff, in brief, is this: The plaintiff is the absolute owner and possessor of Plot no.1B admeasuring 473 sq. yards in Sy.no.229/ A at Madinaguda village. He had acquired the suit schedule property under a registered sale deed bearing Document No.10095/ 1994 from one Ahmed Sharif and others, through V.Hanmanth Rao, who is a GPA holder, vide registered GPA Document bearing no.529/ 79, dated 21.8.1979. After purchase of the property, he had raised a compound wall encircling the suit schedule property and was about to erect a gate to protect the land from encroachment. At that time, when interference was caused to the possession and enjoyment of the plaintiff, the present suit for perpetual injunction is filed.

Therefore, the subject petition is not maintainable.

Commissioner cannot be appointed for collecting evidences. The subject petition is filed without assigning any reasons or purpose. The petition is intended to drag on the proceedings. The petition is devoid of merit and is liable to be dismissed.

6.

Learned counsel for the plaintiff submits as follows: 'The Court below failed to consider that a commissioner cannot be appointed for collection of evidence. The Court below without giving any reasons and looking into the documents, appointed the commissioner erroneously. The Court below ought to have seen that there is no dispute regarding the identity of the property or the boundaries of the property. The plaintiff is not changing the nature of the property. The petition is not maintainable under facts and in law. The petition is filed only to drag on the matter.'

7.

The learned counsel for the 1st defendant would submit that in view of the contentions of the parties and the relief claimed in the suit, appointment of an Advocate Commissioner is highly essential for the purpose desired and that unless commissioner appointed notes the physical feature and measures the property, it would be impossible for the 1st defendant to establish his case and that if a commissioner appointed measures the property with the help of a surveyor and files a report with a plan, the said evidence would be helpful to the trial Court in effectively adjudicating the dispute between the parties. 8.

I have given earnest consideration to the facts and submissions. 9.

The plaintiff filed a suit for a perpetual injunction restraining the defendants and their henchmen etcetera from interfering with the plaintiff's peaceful possession and enjoyment over the suit schedule property. The 1st defendant sought appointment of an advocate commissioner to note down the physical features of the schedule property and also to measure the actual extent of land bounded by Tin Sheets. The trial Court allowed the said application inter alia observing that a commissioner can be appointed in a suit for permanent injunction

to note down the physical features of the schedule property only and not for the purpose of finding out as to who is in possession of the property. From the pleadings and the contentions advanced in line with the pleadings, it is discernable that though the core issue is about possession of the suit schedule property, the incidental but important question is as to whether the suit schedule property on land corresponds to or matches up with the property being claimed by the plaintiff or the 1st defendant. Therefore, the core dispute is about the identity of the property and the said dispute cannot be resolved without localisation or identification of the subject property on land.

10. The plaintiff contends that he is in possession and enjoyment of the property viz., Plot no.1B admeasuring 473 sq. yards in Sy.no.229/ A at Madinaguda village as on the date of filing of the suit having purchased the same under a registered sale deed bearing Document No.10095/ 194 from Ahmed Sharif and others. He also pleaded that after purchase of the property, he had raised a compound wall encircling the said property and that when he was about to erect a gate the interference was caused. Whereas, the 1st defendant submits that he is the absolute owner and possessor of land admeasuring 1459.65 square Yards covered by plot nos.

permission granted, the plaintiff who has nothing to do with the same filed the instant suit.

11.

Before proceeding further, be it noted that the learned counsel for the defendants relied upon the following decisions:

(i) K.Dayanandand v. P.Sampath Kumar1; (ii) Mohd. Mahmood Ali v. Municipal Council, Suryapet, Nalgonda District & others2; (iii) Jammi Venkata Krishna Rao v. Jammi Venkata Hanuma Ravindranath3; and, (iv) Mundladinne Gopal Reddy v. P.Ramachandra Reddy4. Ultimately, the decisions in the cited cases turned on the facts of the cases.

There is no hard and fast rule or a settled position of law that an advocate commissioner cannot at all be appointed for any purpose in a suit for perpetual injunction; and, it cannot be laid down as a rule of thumb that in no suit for perpetual injunction, an advocate Commissioner can be appointed; however, the law is well settled that a Commissioner cannot be appointed to find out as to who amongst the parties is in possession of the property as it is the function of the Court to decide the issue as to who amongst the parties is in possession of the property and the said judicial function cannot be delegated to an advocate commissioner. Further, whether a commission shall be issued or not depends largely on the facts of a given case.

Under law, in any suit in which the Court deems local investigation is requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to an advocate or any competent person and direct to make such investigation and to report to the Court.

1 2015 (2) ALD 319 2 2008 (5) ALD 668 3 2015 (5) ALD 429 4 2016 (6) ALD 124

12.

Reverting to the facts of the case, it is to be noted that the property mentioned in the plaint schedule and being claimed by the plaintiff is stated to be a plot admeasuring 473 square yards in Survey no.229/ A at Madinaguda village. Whereas the 1st defendant is claiming that he is the owner and possessor of land admeasuring 1459.65 square yards covered by Plots in Survey Nos. 228 & 229/ 1 of Madinaguda village. The plaintiff claims that he enclosed his property within compound walls; whereas the defendant claims that he obtained permissions for construction and regularisation orders and that he constructed two rooms in his property and encircled it by erecting tin sheets and that he also obtained electricity service connection.

Thus, the physical features of the properties being respectively claimed by the plaintiff and 1st defendant are different. Further, it prima facie appears that both the parties are claiming properties of different extents in different survey numbers. Therefore, the core question that may ultimately have to be determined is as to whether the suit schedule property corresponds to the property being claimed by the plaintiff or the property being claimed by the defendant.

Therefore, if a Commissioner appointed by the Court visits the locality and notes down its physical features including the structures, if any, and also the existence or otherwise of service connection and further identifies and localizes the property mentioned in the plaint schedule after conducting a survey with the help of a competent surveyor and files a report, the dispute can effectively be resolved and a quietus can be given to the lis.

same on land is highly essential. Unless the Commissioner measures the properties being claimed by both the parties after taking measurements with the help of a qualified surveyor and localizes the property in dispute on land and files a report with a plan, it is not possible to effectively adjudicate the issues involved in the suit. Further, the evidence which the Commissioner gathers by making local inspection and conducting survey cannot otherwise be procured; and, such evidence can be procured only by issuing a commission.

If a Commissioner is appointed and does the work as desired by the 1st defendant and files a report with a plan after localising the property on ground, the said report with plan and the evidence the Commissioner may give, if he is examined before the trial Court, would perhaps enable the trial Court to better appreciate the other evidence that may be let in by the parties during the course of trial. It would be impossible for the parties to establish their respective pleaded cases in the absence of issuance of a commission for local inspection and conducting a survey with the assistance of a surveyor for localising the suit schedule property and its actual extent and also the property being claimed by the 1st defendant.

It is axiomatic that in the oral evidence that both parties may adduce, they would naturally assert their respective pleaded cases and would also state that the respective claims are correct. Hence, after adduction of such oral evidence there will be opposing statements made on oath against oath before the Court below; therefore, if a Commissioner is appointed and he inspects the property and files a report with a plan, such a report will be of immense aid to the Court below.

the purpose desired by the 1st defendant as such a course would only sub-serve the ends of justice.

13.

On the above analysis, this Court holds that appointment of a Commissioner for the desired purpose in the instant suit is essential for effectively adjudicating the lis and giving a quietus to the disputes once and for all and that, therefore, the order impugned does not brook interference.

14.

In the result, the Civil Revision Petition is dismissed. Miscellaneous petitions pending, if any, in this civil revision petition shall stand closed.

________________________ M. SEETHARAMA MURTI, J 08.12.2017 RAR