Allowed

Manchikalapudi Parameswara Rao v. Choppara Subba Rao

Andhra Pradesh HC1 Dec 2022CRP/1284/2019

Case brief

AI extract

What is this about?

Civil Revision Petitioner approached the High Court under Article 227 challenging the dismissal of an application to appoint an advocate commissioner in a permanent injunction suit. The High Court held that no absolute bar exists and allowed the application to determine property extent and survey number, setting aside the trial court order.

What did the court decide?

Civil Revision Petition allowed; order of dismissal of I.A. No.644 of 2018 set aside; trial Court directed to appoint advocate commissioner.

Manchikalapudi Parameswara Rao Vs Choppara Subba Rao — Property and Title | Andhra Pradesh HC (2022)

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THE HON’BLE Ms. JUSTICE B.S.BHANUMATHI

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Civil Revision Petition No.1284 of 2019

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ORDER:

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This civil revision petition, under Article 227 of the Constitution of India, is filed challenging the orders, dated 25.02.2019, dismissing I.A.No.644 of 2018 in O.S.No.22 of 2017 on the file of the Court of I Additional Junior Civil Judge, Tenali, filed under Order XXVI Rule 9 read with Section 75(e) CPC to appoint an advocate commissioner to measure the suit schedule house to find out the total extent of the suit schedule house property by measuring with the assistance of a Mandal Surveyor, Kollipara Mandal, and find out the survey number in which it is situated.

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2 . The suit is filed for perpetual injunction restraining the defendants and their men from in any way interfering with his peaceful possession and enjoyment of the plaint schedule property. The plaintiff claimed the plaint schedule property by virtue of a registered sale deed bearing document No.1224/2016, dated 27.09.2016, of S.R.O., Kollipara, having purchased the same from Kanapala Subba Rao s/o Prakasa Rao.

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3 . The description of the schedules of properties of both the parties is as follows:

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BSB, J C.R.P.No.1284 of 2019

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(a) : The plaint schedule property :

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Guntur District – Kollipara sub-district – Munnangi Gram Panchayat – Munnangi village D.No.430/2 – out of Ac.1.57 cents in 5^th Block near door No.5/55 an extent of 73 square yards or 61.03 Sq. meters vacant house site bounded by:

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East	:	Panchayat bazar
South	:	Site belonging to Kanapala Subba Rao
West	:	Site belonging to Ayyinki Jeevaratham
North	:	Passage belonging to Ayyinki Jeevaratham

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Within the above boundaries, an extent of 73 square yards or 61.03

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Sq. meters house site.

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(b) : Schedule of Defendants’ property :

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The defendants contended that the plaint schedule property is 73 square yards bearing No.5-76.

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Guntur District – Kollipara sub-district – Munnangi Gram Panchayat – Munnangi village D.No.441 – out of Ac.0.85 cents in 5^th Block an extent of 97 sq. yards or 87-10 Sq. meters house site bearing door No.5-76 bounded by:

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East	:	Panchayat bazar
South	:	Site belonging to Kanapala Subba Rao
West	:	Site belonging to Ayyinki Jeevaratham
North	:	Passage belonging to Ayyinki Jeevaratham

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Within the above boundaries an extent of 97 square yards or 87.10 Sq. meters house site bearing door No.5-76.”

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4 . The defendants claimed the property shown in D.No.5-76

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stating that it was initially orally gifted by Kanapala Mariyamma wife

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BSB, J C.R.P.No.1284 of 2019

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of Balasundara Rao through oral gift a long time back to the 1^st defendant and ever since the 1^st defendant has been in possession and enjoyment of the same by paying taxes and subsequently, on 22.08.2015, she executed a registered gift deed to him, vide document No.1194/2015 of S.R.O., Kollipara. It is also pleaded in the written statement that the old constructions in the site were removed and a thatched house was raised afresh and that except this site, the 1^st defendant has no other house site.

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5 . The plaintiff filed petition in I.A.No.644 of 2018 seeking appoint of an advocate commissioner stating that pending the suit, basing on the false gift deed, the defendants and their men illegally trespassed into vacate site of the plaintiff and started construction of a thatched house and though the plaintiff resisted the defendants and their men, the plaintiff was threatened with dire consequences; and as such, the plaintiff gave a report to the police of Kollipara Police Station, but the police did not take any action under the influence of the defendants. Therefore, the plaintiff states that it is necessary to appoint an advocate commissioner to know in which survey number the suit schedule property is situated and also to know its extent.

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6 . In spite of service of notice to the counsel for the respondents/defendants on the petition in I.A.No.644 of 2018, no counter has been filed.

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BSB, J C.R.P.No.1284 of 2019

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7 . After hearing the petitioner, the trial Court dismissed the petition observing that the suit being one for the relief of permanent injunction, the petitioner cannot seek appointment of an advocate commissioner to localize the property and know the survey number of the plaint schedule property to gather evidence and that the plaintiff has to prove the case with cogent and convincing evidence during trial to prove his case of possession of property and interference of the defendants.

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8 . Having been aggrieved of the said order, the petitioner/ plaintiff preferred this revision contending that the trial Court erred in dismissing the petition, though no counter has been filed by the respondents, by raising flimsy and hyper-technical grounds.

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9 . Learned counsel for the revision petitioner submitted that it is very much necessary to appoint a commissioner to finally resolve the disputes and that no prejudice would be caused to the respondents, even if the commissioner is appointed. He further submitted that appointment of commissioner, even in a case of suit for permanent injunction is not a bar under all circumstances and urged to allow the revision petition.

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10 . As rightly submitted, it is not an absolute bar to appoint a commissioner in a suit for permanent injunction. Depending upon

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BSB, J C.R.P.No.1284 of 2019

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the facts and circumstances in each case, a commissioner can be appointed.

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11 . In the present case, since the plaint schedule property is described as a vacant site and the defendants also claim another property, but both of them fight for the same property on ground, it is necessary to appoint a commissioner to enable the Court to find out the property in respect of which the plaintiff is seeking the relief. Moreover, by appointing a commissioner for the relief as prayed for, no prejudice would occasion to the respondents. On the other hand, the report of a Commissioner would help the Court to completely adjudicate the dispute. Therefore, the trial Court ought to have allowed the petition. Since the trial Court failed to properly exercise its jurisdiction and erroneously dismissed the petition, it is a fit matter to interfere.

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12 . Accordingly, the Civil Revision Petition is allowed setting aside the orders, dated 25.02.2019, passed by I Additional Junior Civil Judge, Tenali, in I.A.No.644 of 2018 in O.S.No.22 of 2017 and allowing the petition. The trial Court is now directed to appoint an advocate commissioner as prayed for and also to answer work memo, if any, given by either party; fix his/her fee and stipulate the time for submission of report and see the matter is expeditiously disposed.

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BSB, J C.R.P.No.1284 of 2019

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There shall be no order as to costs.

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Miscellaneous petitions, if any, pending in this revision shall

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stand closed.

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_________________ B. S. BHANUMATHI, J

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01-12-2022

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RAR

Manchikalapudi Parameswara Rao v. Choppara Subba Rao

Case brief

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Manchikalapudi Parameswara Rao v. Choppara Subba Rao

Case brief

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