Dismissed

Gandla Siddappa v. G Siddeswarappa

Andhra Pradesh HC2 Dec 2022CRP/3133/2018

Case brief

AI extract

What is this about?

The Supreme Court, in a civil revision petition under Article 227, dismissed the challenge against the High Court exparte order (corrected in the record) of the trial court appointing an advocate-Commissioner in a suit for permanent injunction to note topographical features of a disputed land. The court held that no absolute bar exists for such appointment in injunction suits when facts necessitat

What did the court decide?

The Civil Revision Petition filed under Article 227 of the Constitution was dismissed, confirming the appointment of the advocate-Commissioner.

Gandla Siddappa Vs G Siddeswarappa — 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.3133 of 2018

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ORDER:

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This Civil Revision Petition, under Article 227 of the Constitution of India, is filed against the orders, dated 07.05.2018, allowing I.A.No.296 of 2017 in O.S.No.196 of 2015 on the file of the Court of Junior Civil Judge, Pattikonda, filed under Order 26 Rule 9 CPC by the defendants No.1 and 2 to appoint an advocate-Commissioner to make local investigation to note down the topographical features of the suit schedule locality as shown in the plaint plan and as per the documents filed by the petitioners and the respondents, with the assistance of a Mandal Surveyor after receiving the work memo of both parties.

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2 . Heard learned counsel appearing for the parties.

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The suit is filed by the respondent for permanent injunction in

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respect of the property shown in the following schedule:

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S C H E D U L E

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The open site (“P, Q, R, S” in the plaint plan) is situated at Gonegondla village and Mandal within Sub-Registration District of Kodumur and District Registration of Kurnool within following boundaries:

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Survey No. Extent 995 East-West : 5.5 ‘ feet North-South : 66’ feet

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CRP No.3133 of 2018

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Boundaries: East : House of Gudikal Lakshmi Devi, W/o Pedda Rangaswamy West : House of Prabhakar Naidu North : House and open sites of the plaintiff South : Defendants’ site and plaintiff’s new constructed house

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3 . The defendants filed their written statement stating that the plaintiff has shown in the plaint plan an open site belonging to the first defendant and the said site was purchased by the first defendant from the mother of plaintiff and later the first defendant submitted an application to the gram panchayat to accord permission for construction of rooms in that site and basing on that tried to construct rooms after filing a petition before the Mandal Tahasildar to direct the Mandal Surveyor to measure the site. The plaintiff gave notice to them not to measure the land as the suit is pending. The Mandal Tahasildar refused to measure the land as the suit is pending. Since the said site is not in dispute and these defendants intend to construct rooms in his open place shown in the plaint plan, there is urgency to appoint an advocate commissioner to make local investigation with the assistance of Mandal Surveyor of Gonegandla.

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4 . The petition was opposed by filing counter of the respondent/plaintiff stating that all the averments in the affidavit are false and that the petitioners failed to give description of the property in schedule in respect of which appointment of Commissioner is sought and further the petitioners failed to give reason for what purpose the surveyor has to be appointed. It is also stated that the plaintiff has shown open site of the defendants in the plaint plan, as per the pleadings of the defendants,

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CRP No.3133 of 2018

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the plaintiff encroached their open site and thus there is inconsistency in the pleadings and hence the petition is not maintainable.

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5 . On contest, the trial Court allowed the petition appointing Sri D.Bala Basha, an advocate as Commissioner. The trial Court observed in the order that no schedule of the locality is mentioned in the petition where the Commissioner has to make local investigation and note down topographical features, however it further observed that the plaint plan cannot be taken as bench mark for noting down topographical features of the suit locality, but the documents filed by the petitioners and the respondent in the suit can be used for locating the suit schedule property for noting down topographical features. The trial Court noted that the petitioners mentioned about the open site shown in the plaint plan and such open site is not in dispute and further they stated about the urgency to make constructions in the undisputed open site and thereby there should not be any obstruction by the plaintiff to make such constructions. It is also observed by the trial Court that though the courts are normally reluctant to appoint a Commissioner to note down the physical features in a suit for injunction since the same would amount to collection of evidence, there is no absolute bar to appoint commissioner in a suit for injunction and if the facts and circumstances necessitate on the basis of prima facie material that there is an attempt on the part of the parties to alter the physical features, it is always open to court to appoint Commissioner for inspection of such property. Therefore, the trial Court felt it necessary to appoint a Commissioner.

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CRP No.3133 of 2018

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6 . Having been aggrieved by the order, the respondent/plaintiff preferred the revision on the grounds that the order is contrary to law and facts and was passed without properly appreciating the case and that the petitioners miserably failed to explain the purpose of filing the petition and the way in which the petition is filed clearly shows that it was filed for collection of evidence which is not permissible as per the settled law. It is also contended that the trial Court, having held that no schedule of the locality to be inspected was mentioned in the petition, the petition was allowed, though normally courts are reluctant to appoint a commissioner in a suit for injunction as it would amount to collection of evidence.

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7 . Learned counsel for the revision petitioner emphatically reiterated that the trial Court erred in allowing the application in spite of its observation that the petitioner has not given schedule of the locality in respect of which the Commissioner has to inspect and note down the features. He further submitted as in the counter and the contentions raised before the trial Court.

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8 . Learned counsel for the respondents supported the order of the trial Court.

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9 . Though the trial Court observed that the petitioner has not given schedule of the locality, it has given valid reasons for appointing a Commissioner and the need to do so in view of the fact that the plaintiff has given plaint plan and has shown the property of the defendant in such plan. Therefore, though no specific schedule of the property is given in the

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CRP No.3133 of 2018

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petition, from the averments in the petition, the property is very identifiable with reference to the plaint plan annexed. Thus, the fact that the petitioner has not specified the schedule cannot be magnified as a fault to dismiss the petition. To resolve the disputes between the parties, appointment of Commissioner would be helpful, if topographical features are noted and the property is surveyed for its identification. As rightly observed by the trial Court, there is no bar for appointment of Commissioner in a suit for injunction. Depending upon the facts and circumstances in each case, wherever it is necessary, it facilitates the Court to properly understanding the real situation of the existing features since Commissioner is an independent person. In the present case, this Court does not see any irregularity or illegality committed by the trial Court in allowing the application. Thus, the revision petition is liable to be dismissed.

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10 . Accordingly, the Civil Revision Petition is dismissed.

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There shall be no order as to costs.

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Miscellaneous petitions pending, if any, shall stand closed.

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________________ B.S BHANUMATHI, J

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Dt.02-12-2022 PNV

Gandla Siddappa v. G Siddeswarappa

Case brief

What is this about?

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Gandla Siddappa v. G Siddeswarappa

Case brief

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