Allowed

Adireddy Sri Ramulu v. Kolluru Satyanarayana

Andhra Pradesh HC15 Oct 2019CRP/1165/2019

Case brief

AI extract

What is this about?

The High Court set aside the lower court's order denying an Advocate Commissioner for inspecting standing trees in disputed property. It remitted the matter directing a site inspection with assistance from a horticulture expert to verify tree age and existence, as essential for localizing land and testing possession claims.

What did the court decide?

Order of lower court set aside; trial court directed to appoint an Advocate Commissioner with assistance of a Horticulture expert to inspect and determine age and extent of standing trees.

Adireddy Sri Ramulu Vs Kolluru Satyanarayana — Property and Title | Andhra Pradesh HC (2019)

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C.R.P.No.1165 of 2019

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HON’BLE SRI JUSTICE M. VENKATA RAMANA

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CIVIL REVISION PETITION No.1165 OF 2019

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ORDER:

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This Civil Revision Petition is directed against order in I.A.No.153 of 2019 in O.S.No.17 of 2010 dated 29.03.2019 on the file of the Court of learned Junior Civil Judge, Srungavarapukota, Vizianagaram District.

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The defendant filed the above petition in the trial Court under Order 26 Rule 9 CPC read with Section 151 CPC to appoint an advocate Commissioner to inspect and note down the physical features of the plaint schedule property including standing trees therein like mango, cashew, teak etc.

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The respondents as the plaintiffs laid the suit for grant of permanent injunction against the petitioner, to restrain him from interfering with their peaceful possession and enjoyment of the plaint schedule property. An extent of Ac.2.07 cents described in items 1 to

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8 in plaint schedule, situated at Vinayakapalli Village, Srungavarapukota Mandal, is in dispute.

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The defendant claiming his interest in the above property by virtue of an agreement for sale and further claiming that he has been in possession and enjoyment of this land, where there have been certain trees like mango, teak and cashew etc. Therefore, for the purpose of localization of the above land with reference to such standing trees, he requested the trial Court, filing the above petition, to appoint an Advocate Commissioner.

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The respondents opposed the above petition asserting the claim of the petitioner as to possession and enjoyment of the plaint schedule

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MVR,J

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C.R.P.No.1165 of 2019

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land and further claiming that after purchase of this land, he has raised a garden planting trees and attempt of the petitioner was only to get evidence to support his claim.

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Considering the material as well as the contentions of the parties, basing on the statements elicited from the first respondent, who was examined as P.W.1 at the trial in respect of location of teak and mango plants in the plaint schedule property as well as their age, the trial Court dismissed the petition.

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In this revision petition, Sri Dasari S.V.V.S.Prasad, learned counsel for the petitioner contended that appointment of the Commissioner as sought is with a view to know about location of trees as well as their age in as much as the petitioner had purchased the land under agreement for sale and by an appointment of Commissioner, the respondents would not suffer any prejudice, as such.

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On behalf of the respondents, the order under revision is supported with reference to the reasons assigned therein while asserting that the respondents are in possession and enjoyment of the land.

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Now, the point for determination is: - “Whether an Advocate Commissioner for the purposes sought by the petitioner is required to be appointed and if order of the lower Court is justified?”

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The suit laid by the respondents is for permanent injunction against the petitioner with reference to the plaint schedule property. Both parties have been claiming that they have been in possession and enjoyment of this land.

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C.R.P.No.1165 of 2019

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As seen from the written statement of the petitioner, he has specifically averred that he has been in possession and enjoyment of the plaint schedule property having had purchased from the original owners under two agreements for sale dated 06.12.2016 and 05.01.2017, where there were trees. There is also reference in para-7 of the written statement that the sale deed relied on by the respondents did not reflect as to availability of the mango trees etc. When these specific pleas are raised in the written statement, the petitioner has to substantiate the same leading appropriate evidence. In that process, the petitioner required appointment of an Advocate Commissioner, particularly, with an intention to prove that there were mango, teak and cashew trees in the plaint schedule land. When such an effort is made by the petitioner during course of trial, the trial Court should have allowed appointment of a Commissioner. It is not an instance of fishing out evidence by the petitioner and appointment of a Commissioner for the purposes sought by the petitioner certainly would obviate a lot of oral evidence, which the petitioner is required to adduce in the course of trial about existence of trees, their age etc. The report of the learned Commissioner would certainly assist the Court in arriving at an appropriate decision. Even the respondents would stand the benefit by the proposed visit of the Commissioner and to support their contention in this petition. Thus, they would not suffer any prejudice thereby. Learned trial Judge did not consider this factor in proper perspective and merely relied on the statements elicited from the first respondent in the course of trial as P.W.1 to negative the relief.

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In this given facts and circumstances, it is desirable to appoint an Advocate Commissioner for the purposes sought by the petitioner.

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MVR,J

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C.R.P.No.1165 of 2019

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Therefore, finding that learned trial Judge did not appreciate the matter in proper perspective and it led to failure of justice, the order under revision has to be interfered with.

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In the result, the Civil Revision Petition is allowed. Consequently, the order of the Court of learned Junior Civil Judge, Srungavarapukota, in I.A.No.153 of 2019 in O.S.No.17 of 2010 dated 29.03.2019 is set aside. The trial Court is directed to appoint an Advocate Commissioner for the purposes mentioned in the petition fixing up an appropriate fee and opportunity shall also be given to the learned Commissioner to have services of a Hearty Culture Expert either of the Government Hearty Culture Department or from any other private institution to assist the Commissioner in the process of inspecting and deciding the age and extent of standing trees in the plaint schedule land. No costs. Consequently, interim orders if any, stand vacated. Miscellaneous Petitions, pending if any, stand closed.

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__________________________ M. VENKATA RAMANA, J

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Dt: .10.2019 Rns

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MVR,J

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C.R.P.No.1165 of 2019

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HON’BLE SRI JUSTICE M. VENKATA RAMANA

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CIVIL REVISION PETITION No.1165 OF 2019

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Date: .10.2019

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Rns

Adireddy Sri Ramulu v. Kolluru Satyanarayana

Case brief

What is this about?

What did the court decide?

Adireddy Sri Ramulu v. Kolluru Satyanarayana

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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