Allowed

M.R.Pradeep Kumar v. S.Nanda Kishore

Andhra Pradesh HC15 Dec 2022CRP/1327/2021

Case brief

AI extract

What is this about?

Single judge allowed a civil revision petition, setting aside the trial court's order dismissing an application to re-entrust warrant to the same advocate commissioner. The High Court held that re-entrusting the same commissioner to clarify uncovered material aspects is legal and necessary for complete adjudication.

What did the court decide?

Civil Revision petition allowed; Impugned order set aside; Trial Court directed to re-entrust warrant to same commissioner or appoint another.

M.R.Pradeep Kumar Vs S.Nanda Kishore — Execution and Attachment | Andhra Pradesh HC (2022)

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

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Civil Revision Petition No.1327 of 2021

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ORDER :

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This revision petition, under Article 227 of the Constitution of India, is preferred against the order, dated 25.11.2021, dismissing the petition in I.A.No.231 of 2020 in I.A.No.586 of 2018 in O.S.No.49 of 2015 on the file of the Court of II Additional District Judge, Hindupur, filed under Order XXVI Rule 9 CPC to direct the advocate commissioner who was already appointed in I.A.No.586 of 2018 to revisit the petition schedule property to note down whether the properties in Sy.Nos.74-2, 75-3, 75-5 and 75-2 forms a single plot or not, with the assistance of the Mandal Surveyor, Lepakshi, with reference to FMB sketch and to file report.

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2 . Heard Sri P. Narahari Babu , learned counsel for the revision petitioner/plaintiff and Sri Marri Venkata Ramana , learned counsel for the respondent/defendant. The revision petitioner is the petitioner/plaintiff and the respondent herein is the respondent/ defendant.

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3 . The petitioner filed the suit for declaration of the right, title and possession over the suit schedule property and for consequential relief of perpetual injunction against the defendant, his men etc., from interfering with the possession and enjoyment of the plaintiff over the following plaint schedule property.

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“Property situated in RD and SRO of Hindupur within Pulimithi

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villge polam and panchayat area Lepakshi Mandal

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Govt. Dry Sy.No.75-5 Extent Ac.1.84 cents

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bounded by

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East	:	Land in Sy.No.78
West	:	land in Sy.No.75-3 and 75-2
North	:	Land in sy.No.74
South	:	Hindupur-Pulimithi Road and Sy.No.75-4

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in which a bore-well and accessories thereon and 50 coconut trees, 40 mango trees, 10 tamarind trees, 100 teak trees and 100 silver Oke trees are in existence in the suit schedule property.”

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4 . It is the case of the plaintiff that originally late D.Kotipanna and S. Kariyappa are owners of Ac.0.94 cents each, a total of Ac.1.88 cents in Sy.No.75-5 and Kotipanna died prior to 1994 leaving behind his wife, Smt. Nanjamma. On 17.01.1994, Smt. Nanjamma sold Ac.0.94 cents in SY.No.75-5 to A.V.Krupashankara Rao under a registered sale deed and delivered possession. A.V.Krupashankara Rao, along with his other family members sold this property to the plaintiff under a registered sale deed, dated 30.04.1996 and put the plaintiff in its possession. Thus, the total plaint schedule property of Ac.1.88 cents was purchased. Later, Kariyappa and his family members also sold the remaining Ac.0.94 cents in Sy.No.75-5 to the plaintiff under a registered sale deed, dated 29.04.1998, and put him in its possession. The plaintiff purchased land in Sy.Nos.74-2, 75-3 and

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75-2 located on the west and north of the plaint schedule property (a total extent of Ac.4.40 cents in all four (4) survey numbers) form a single plot with common boundaries. The plaintiff planted stones all around his property of Ac.4.40 cents with an entrance gate on its southern side. In the plaint schedule property, there is a bore-well dug by A.V.Krupashankara Rao with electricity connection No.258 which was obtained in the name of A.V.Krupashankara Rao. After purchase of property, the plaintiff planted 50 coconut trees, 40 mango trees, 10 tamarind trees, 100 teak trees and 100 silver oak trees on boundaries on four sides and is raising crops and commercial flower bushes in the land within the boundary line four sides. The plaintiff got constructed one watchman shed and a strong room for storage of agricultural implements in the plaint schedule property. The plaintiff is paying land revenue and pattadar passbook and title deed were issued and his name was mutated in the ROR. The defendant or his predecessor never interfered with possession of the plaintiff or his vendor nor raised objection for issuance of pattadar passbook or title deed. However, recently before, i.e., on 07.04.2015, the defendant filed appeal before the RDO, Penukonda, for cancellation of pattadar passbook and title deed issued in favour of the plaintiff. The defendant is trying to trespass into the plaint schedule property by removing the stone

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slabs. The defendant is bent upon questioning the title of the plaintiff. Hence, the suit is filed.

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5 . The defendant filed written statement denying the case of the plaintiff and pleading his case that the plaint schedule property and some other properties originally belonged to Chinna Kotipanna S/o Pedda Chowdi Reddy. Sakala Sidda Raju got item Nos.1, 4 and 6 to 9 of the plaint schedule property of Chinna Kotipanna, including the plaint schedule property shown as item No.4, sold in favour of Saka Krishna Murthy on 10.06.1977 in a public auction in E.P.No.156 of 1976 for realization of decretal debt in O.S.No.240 of 1975 on the file of the District Munsif Court, Hindupur. The sale was confirmed on 21.09.1988. E.A.No.50 of 1989 was filed for delivery of the property. On 08.04.1989, the Bailiff from the Court removed Chinna Kotipanna from the possession and put C.S.Aswarthanarayana Reddy, S.Kotipanna (Sarpanch) and T. Hanumanthappa in possession of the properties. Later, Sakala Krishna Murthy died leaving behind him his wife, Subba Ratnamma and only son, Prabhakar. On 29.03.1977, the defendant purchased the plaint schedule property and some other properties from Subba Ratnamma and S.Prabhakar under a registered document bearing No.1126/1997. Since then, he has been in possession and enjoyment of the property. After the properties of Chinna Kotipanna were sold in auction in execution petition, there remained

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no property of Ac.1.84 cents in Sy.No.75-5. All coconut trees, mango trees, tamarind trees, teak trees, and silver oak trees in the schedule mentioned property belong to the defendant. The defendant is residing in Bangalore. When the defendant applied to the Tahasildar, Lepakshi for pattadar passbook for land in suit survey number and other properties purchased from Subba Ratnamma and S. Prabhakar, he was informed that the plaintiff obtained pattadar passbook for Ac.1.84 cents in Sy.No.75-5 by playing fraud and suggested to file appeal before the R.D.O, Penukonda, for cancellation of pattadar passbook issued to the plaintiff. So, the defendant filed appeal. The Tahasildar also submitted his report to the R.D.O vide R.C.No.133/2015/A2, dated 28.07.2015. The appeal is pending. The plaintiff is owner of land adjacent to the plaint schedule property. Taking advantage of absence of the defendant in Hindupur, the plaintiff managed the revenue officials by playing fraud and obtained pattadar passbook in favour of the plaintiff. Thus, both parties claim title and possession of the plaint schedule property.

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6 . Previously, the plaintiff filed I.A.No.586 of 2018 seeking appoint of commissioner to note down the physical features of the plaint schedule property narrating all the main pleadings in the plaint and stating that the trees are aged about 20 years and noting the physical features by the advocate commissioner would minimize

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evidence. The commissioner visited the property and filed his report. (The commissioner was directed to answer work memos, if any, given at the time of the inspection). The commissioner reported that he visited the property on 13.07.2019 in the presence of counsels for both parties and the plaintiff, but the defendant was absent and that he received work memos from both counsels. The commissioner noted in the report that the plaint schedule property is in Sy.No.75-5 to an extent of Ac.1.84 cents within the following boundaries.

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East : Land of Dasari Gangappa, Nanjaiah West : Land of Pradeep Kumar (plaintiff) North : Land of Pradeep Kumar (plaintiff) South : Land of Aswathappa sold to ne Eswaraiah.

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The commissioner noted the following in the said land:

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Fencing stones were planted on south and eastern side;

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Two electrical poles were planted towards east and north of plaint schedule property;

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An old room (15 feet by 10 feet facing north side) and connected to electrical connection and it was locked;

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Ant Hill;

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A pit in front of old room situated in the plaint schedule property;

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8 big tamarind trees aged about 60 years (out of them 2 fruit bearing);

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10 small Tamarind trees aged about 35 years;

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6 big neem trees aged about 25 years;

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20 small neem trees aged about 15 years;

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25 dried trees aged about 25 years;

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A small mango tree;

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10 Sapota trees;

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Thorney bushes;

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He has taken photos of plaint schedule property and enclosed with CD

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7 . The plaintiff filed objections in August, 2019, that though the commissioner was given work memo requesting to note down existing fencing all around the land of the plaintiff in the suit schedule survey number and other survey numbers. The commissioner did not mention it and main entrance gate of the plaint schedule property, and the fact that other land in the three survey numbers also in the plaint schedule property forms a single plot. He did not note watchman shed adjacent to the entrance gate and the bore-well and electrical connection No.258 though he observed them.

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8 . Later, in March, 2020, petition in I.A.No.231 of 2020 is filed with a prayer to direct the advocate commissioner who was already appointed in I.A.No.586 of 2018 to revisit the plaint schedule property to note down whether the land of Ac.4.40 cents in Sy.Nos.74-2, 75-2, 75-3 and 75-5 form a single plot with common fencing and entrance gate, along with the assistance of the Mandal

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Surveyor, Lepakshi, with reference to FMB sketch, or else the very purpose of appointing commissioner would be defeated/frustrated.

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9 . The petition was opposed by the defendant by filing counter denying what all is stated in the affidavit supporting the petition as false and further stating that Order XXVI Rule 9 CPC is to make local investigation, but not to revisit. All the defence stated in the written statement is reiterated. Further, it is stated that the plaint schedule property is Ac.1.84 cents, but the petitioner is now asking about Ac.4.40 cents and that if the petitioner has purchased it, he has to mention boundaries in the suit schedule, but the boundaries mentioned in the document and the boundaries mentioned in the plaint schedule property are not the same. The commissioner noted down physical features of the land of Ac.1.84 cents in S.No.75-5 as per the warrant in I.A.No.586 of 2018 and filed the report with sketch, to which the petitioner filed objections also. The commissioner cannot be appointed to visit the property beyond the suit schedule property. In the earlier petition in I.A.No.586 of 2018, there was no such relief asked. Again, the commissioner cannot be appointed for the same relief. The petitioner filed I.A.No.369 of 2019 to examine the commissioner and I.A.No.370 of 2019 to summon the Tahasildar and Mandal Surveyor to cause production of FMB and give evidence. I.A.No.369 of 2019 was allowed, but I.A.No.370 of 2019 was dismissed. The petitioner examined the

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commissioner as PW4 and exhibits C1 to C6 were marked. Again, the petitioner filed I.A.No.50 of 2020 for the same relief of summoning the Tahasildar and the Mandal Surveyor. I.A.No.50 of 2020 was dismissed on 24.02.2020. Already, PWs 2 & 3 were examined on 02.08.2018 and plaintiff’s side evidence was closed and on 31.08.2018. PW 4 was examined and plaintiff’s evidence was closed. Petition after petitions are being filed to just drag on the matter.

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10 . On contest, the trial Court dismissed the petition in I.A.No.231 of 2020 observing that the plaintiff has to prove his title and possession of the plaint schedule property as on the date of the filing of the suit.

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11 . The revision petitioner, while reiterating the grounds urged in the petition, contended that the trial Court ought to have allowed the petition as there is burden on the plaintiff to prove title and enjoyment over the plaint schedule property and further has taken aid from the decisions in 2006 (2) ALD 727, 2006 (4) ALT 23 and 2020 (1) ALD 512 (AP) in support of the contention that reentrustment of the warrant for the very same commissioner is required when there is deficiency in the report filed by the commissioner.

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12 . Learned counsel for the revision petitioner argued as in the petition and the revision and mainly contended that though the entire property of the plaintiff is not in dispute, it is the consistent case of the plaintiff that the suit schedule property is part and parcel of the entire property of Ac.4.40 cents which is a single bit of land, and therefore, it is necessary to observe the same also. It is further submitted that even when the commissioner visited earlier, he was requested to note all those features but since he failed to record the same, it necessitated the plaintiff to again seek re-entrustment of the warrant to the commissioner.

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13 . On the other hand, learned counsel for the respondent submitted that the commissioner cannot be asked to go beyond what is there in the plaint schedule property, and therefore, commissioner cannot be found fault nor can he be asked to again visit and note the other property of the plaintiff by enlarging the scope of the relief granted in the earlier petition. He further submitted that no work memo was given and no objection was filed in this regard by the petitioner and hence, the revision petition is liable to be dismissed. It is also contended by him that that the petitioner has to prove the case by placing evidence, oral and documentary, and it is no more required to re-entrust the warrant to the commissioner since he has already answered the warrant as well as the work memos.

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14 . Though the disputed property in the present suit is Ac.1.84 cents in S.No.75-5, the case of the plaintiff is that it is part and parcel of the rest of his property and it is being enjoyed as single plot along with rest of the property and the entire property of Ac.4.44 cents was fenced on all four sides with a single entrance gate and the same was being enjoyed for long time in the same condition and these physically notable facts would prove his case in addition to the oral and documentary evidence. In fact with the same urge, the earlier application was filed for appointment of commissioner and the dispute between the plaintiff and the defendant is very much available in the form of pleadings in the plaint and the written statement. Both parties claim title and possession over the plaint schedule property of Ac.1.84 cents. Therefore, the plaintiff has to prove his case basing on the pleadings.

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15 . Certain facts can be established by oral evidence, documentary evidence or by local investigation of the commissioner. Just because the oral and documentary evidence enable a party to prove certain facts, facts which can be observed and reported to the Court by a commissioner cannot be effectively proved by other means of evidence. Having been satisfied with the necessity to appoint a commissioner, the earlier application was

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allowed. A perusal of the report of the commissioner and the objections raised, as noted above, indicate that the real dispute between the parties cannot be decided completely with the contents of the report filed. In fact, some more facts which the plaintiff sought to be observed by the commissioner will help the Court to adjudicate the dispute really involved in the suit.

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16 . The petitioner/plaintiff has not delayed the matter in filing the petition. The report has been filed by the commissioner on or after 18.07.2019 and the plaintiff filed objections in the month of August, 2019 and the present petition is filed in the first week of March, 2020. Thus, there are no laches or intention to delay the proceedings which can be attributed to the plaintiff. It is always open for the court to grant appropriate relief at any stage of the suit for the purpose of complete adjudication of the real dispute between the parties. If the purpose of appointing commissioner is not completely fulfilled, it is not beyond the jurisdiction of a court to reentrust the warrant to the commissioner asking to make further investigation and report on the important aspects required.

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(i). In the case of K.V.S.N.V. Prasad and another v. Public Club, Huzurnagar, Nalgonda District and others¹ , the High Court held that in the light of series of events that had been brought to the notice of the Court, re-entrustment of the warrant to

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1 2006(2) ALD 727

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the commissioner giving clarification is not a case of appointing a fresh commissioner or a 2^nd commissioner for the same purpose, but it is only a case of re-entrustment which is legal.

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(ii) In Seepally Thirupathi and others v. Repelli Mallikarjun and another² , it was held that any clarification can be obtained by re-entrusting the warrant to the same commissioner and there is no need to set aside the report earlier filed.

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(iii) In Tadi Suryanarayana Reddy v. Mylavarapu Rama Venkata Krishna Narasimha Rao³ , the High Court of Andhra Pradesh held that in the context of seeking opinion of second expert that, without setting aside the opinion of the earlier expert, it is permissible to seek opinion of another expert provided the findings in the earlier report are not satisfactory or are prima facie incorrect or the first expert had not followed the required procedure etc. It is further observed that when the Court feels seeking opinion from the 2^nd commissioner would be useful for better appreciation of evidence and for reaching just conclusions, it is always permissible under law to do so.

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17 . Keeping in view the aforesaid legal proposition and the need in the present case to get further report of the commissioner on material aspects which were left uncovered in the earlier report, it is

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2 2006 (4) ALT 23

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3 2020 (1) ALD 512 (AP)

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a fit case to allow the petition in the interest of justice to have all the facts before the Court for better adjudication of the dispute. Without going into the necessity to re-entrust the warrant to the commissioner, the trial Court has dismissed the petition with a cryptic order relying just on the contentions raised in the counter. Therefore, the impugned order is liable to be set aside.

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18 . In the result, the Civil Revision petition is allowed setting aside the order, dated 25.11.2021, passed by II Additional District Judge, Hindupur, in I.A.No.231 of 2020 in I.A.No.586 of 2018 in O.S.No.49 of 2015 and allowing I.A.No.231 of 2020. The trial Court is directed to issue warrant re-entrusting the matter to the same commissioner fixing additional fee and time within which the report to be submitted and also to answer the work memos of both sides, if any, given and to execute the warrant after serving notice to both parties. It is made clear that if re-entrustment of warrant to the same commissioner is not possible, for any reason, the trial Court is directed to appoint another commissioner taking all necessary steps in this regard as aforesaid. There shall be no order as to costs.

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Miscellaneous petitions, if any, pending in this revision shall stand closed.

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_________________ B. S. BHANUMATHI, J

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15-12-2022 RAR

M.R.Pradeep Kumar v. S.Nanda Kishore

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M.R.Pradeep Kumar v. S.Nanda Kishore

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