This common order dismissed two revisions regarding the appointment of an advocate commissioner to survey disputed property in a civil suit. The Court held setting aside the impugned order unwarranted despite the belated application, but ultimately dismissed all petitions without imposing costs on either side.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE Ms. JUSTICE B.S.BHANUMATHI
C. R.P Nos.2010 & 1997 of 2019
COMMON ORDER :
Since both these revisions arose out of the interlocutory orders passed in one and the same suit, viz., O.S.No.89 of 2013 on the file of the Court of I Additional Junior Civil Judge, Anantapuramu, both these revisions are heard and are being disposed of together by way of this common order.
2 . Heard Sri Harish Kumar Rasineni , learned counsel for the revision petitioner/defendant and Sri Sreekanth Reddy Ambati , learned counsel for the respondent/plaintiff.
C.R.P.No.1997 of 2019 :
4 . This revision is directed against the order, dated 24.06.2019, in I.A.No.210 of 2019 in O.S.No.89 of 2013 on the file of the Court of I Additional Junior Civil Judge, Anantapuramu, allowing the petition filed under Order XXVI Rule 9 read with Section 151 CPC to appoint an advocate commissioner to note down the physical features of the plaint ‘A’ and ‘B’ schedule properties.
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suit for declaration of her right in the plaint ‘B’ schedule property and also for recovery of vacant possession of the same to the plaintiff and also for the relief of mandatory injunction directing the defendant to remove the constructions made in the plaint ‘B’ schedule property and further for perpetual injunction restraining the defendant, her men etc from interfering with the plaintiff’s peaceful possession and enjoyment of plaint ‘A’ schedule property.
6 . The case of the plaintiff mainly is that she purchased the plaint ‘A’ schedule property shown as ‘ABCD’ in the rough plan and the defendant purchased ‘CDEF’ property shown in the rough plan and both of them purchased from the common vendor, however, the defendant encroached CD CD1 property shown in the rough plan and the encroached portion is shown separately as ‘B’ schedule, which is part of ‘A’ schedule. The defendant denied the allegations of encroachment, however, admitted the fact that the plaintiff and the defendant derived their title from a common predecessor-intitle, i.e., Yagnamurthi Bhagyalakshmamma and her family members. The defendant purchased the property from Yagnamurthi Bhagyalakshmamma and others on 20.06.2001, whereas, the plaintiff’s vendor purchased the property from Yagnamurthi Bhagyalakshmamma on 21.11.2008. After examination of DW1, the plaintiff filed the petition for appointment of Commissioner to note down the physical features to prove that ‘B’ schedule property
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was in encroachment by the defendant. The petition was opposed by filing counter that merely because the defendant admitted in her cross-examination that she has no objection to measure the property, this petition is filed at the stage of arguments and there is no need to appoint a commissioner since the plaintiff has to succeed on her own case and cannot rely on the evidence of the defendant. Further, there is already ample evidence on record lead by both parties before the Court and right conclusion can be taken by the Court with available evidence on record, and therefore, it is only to protract the litigation and wasting the time by way of filing this petition. It is also contended that the petition is filed only to fill in the lacunae in the case and for collection of evidence and that the petitioner ought to have taken this step earlier but not at the stage of the fag-end of the suit.
7 . After hearing both the parties, the trial Court allowed the petition.
8 . The aggrieved respondent/defendant contended as in the counter. In the cross-examination of DW1, she admitted that old constructions in the property purchased by her were demolished and new constructions were made subsequently and further that she has purchased only the property covered by exhibit A2, which is a certified copy of the sale deed of the defendant. As per the contentions of the plaintiff, the defendant is in possession of the
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property far in excess of the property covered by exhibit A2. This fact cannot be established by any amount of oral evidence or photographs. Therefore, it is necessary to get the lands measured with reference to the documents of both parties to arrive at a just conclusion and finally and completely resolve the dispute between the parties. Therefore, the trial Court has not committed any error in appointing the commissioner and there is no need to interfere with the order impugned in this revision. Of course, the petitioner has come at belated stage and could have approached the Court for the same relief earlier, but for that lapse alone, the relief, which is otherwise necessary cannot be refused on that ground only. Because no prejudice would be caused to the respondent and some terms can be imposed while allowing the relief to the petitioner/ plaintiff. The trial Court ought to have imposed some costs on the petitioner while allowing the petition, but it has not imposed any costs. For that reason alone, the impugned order need not be interfered with insofar as appointment of commissioner is concerned.
9 . Thus, without setting aside the order impugned, the respondent/plaintiff herein can be directed to pay some costs to the revision petitioner/defendant. But, since there is no merit in the revision petition, the respondent/plaintiff is also entitled to costs in the revision petition. As such, since both parties are liable to term
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C.R.P.Nos.2010 & 1997 of 2019
of costs against each other, this Court feels that there is no
justification to impose any costs on either of the parties.
C.R.P.No.2010 of 2019:
11 . In view of the dismissal of C.R.P.No.1997 of 2019, there is no merit in C.R.P.No.2010 of 2019 and the same is also liable to be dismissed.
Miscellaneous petitions, if any, pending in these revisions shall
stand closed.
_________________ B. S. BHANUMATHI, J
15-12-2022 RAR
3 issues framed by the court
Whether the lower court committed an error in appointing an advocate commissioner to note physical features of disputed properties.
Whether the belated filing of the appointment petition warrants setting aside the lower court's order.
Whether costs should be awarded to either party given that both revision petitions are dismissed.
2 provisions across 2 enactments
Defendant/Revision Petitioner
Plaintiff/Revision Petitioner
Plaintiff/Respondent in C.R.P.No.2010
Defendant/Respondent in C.R.P.No.2010
B. S. BHANUMATHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
