Challagolla Siva Ranga Ratna Kumari Vs Gorella Srinivasa Rao

of the Constitution of India, aggrieved by the Petition under Article 227 order dated 03-07-2023 passed in I.A.No.161 of 2023 m I.A.No.207 of 2022 in file of Court of Additional Senior Civil Judge, Eluru O.S.No.487 of 2015 on the West Godavari District.

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Between:

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Ratna Kumari, W/o Appa Rao, age 57 years. Challagolla Siva Ranga C/o Garapati Prasad, D.No.3-31. Munduru Village, Pedavegi Mandal West Godavari District.

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...Petitioner/1 Respondent/1®* Defendant

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AND

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R/o D.No.3-

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1. Gorella Srinivasa Rao, S/o Late Ranga Rao, age 48^years Chakrayagudem Grama Panchayat, Munduru

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366, Seetharamapuram Post, Pedavegi Mandal, West Godavari District.

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...Respondent/Petitioner/Plaintiff

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The Mandal Revenu Officer, Pedavegi Mandal. West^{GodavariDistrict.} ...Respondent/2"'' Respondent/2"'' Defendant

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(2"" Respondent is not necessary party in this CRP)

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V.

lA NO: 1 OF 2023

Petition under Section 151 of CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased stay of all further proceedings I.A.No.161 of 2023 in I.A.No.207 of 2022 in O.S.No.487 of 2015 on the file of Court of^{AdditionalSeniorCivil} Judge, Eluru, dated 03-07-2023.

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Counsel for the Petitioner : Sri P N Murthy Counsel for Respondent No.1: Sri G.V.Anand Kumar The Court made the following order:

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APHC010418422023

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IN THE HIGH COURT OF ANDHRA PRADESH [3333] AT AMARAVATI (Special Original Jurisdiction)

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FRIDAY,THE TWELFTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SMT JUSTICE V.SUJATHA

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CIVIL REVISION PETITION NO: 2073/2023

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Between:

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1 CHALLAGOLLA SIVA RANGA RATNA KUMARI, , W/O APPA RAO. AGE 57 YEARS, C/0 GARAPATI PRASAD, D.NO.3-31. MUNDURU VILLAGE PEDAVEGI MANDAL, WEST GODAVARI DISTRICT ...PETITIONER

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AND

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1 GORELLA SRINIVASA RAO, S/0 LATE RANGA RAO, AGE 48 YEARS, R/0 D.NO.3-366, SEETHARAMAPURAM. CHAKRAYAGUDEM GRAMA PANCHAYAT, MUNDURU POST, PEDAVEGI MANDAL, WEST GODVARI DISTRICT.

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2.THE MANDAL REVENU OFFICER, PEDAVEGI MANDAL WEST GODAVARI DISTRICT. (2ND RESPONDENT IS NOT NECESSARY PARTY IN THIS CRP)

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...RESPONDENT(S):

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Petition under Article 227 of the Constitution of India.praying that^inthe circumstances stated in the grounds filed herein.the^{HighCourtmaybe} pleased topleased to set aside the order passed in^I.A.No.161 of 2023 in l.A.No.207 of 2022 in O.S.No.487 of 2015 on the file of Court of Additional Senior Civil Judge, Eluru, dt. 03-07-2023 and pass

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lA NO: 1 OF 2023

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Petition under Section 151 CPC praying that in the^{circumstancesstated} in the affidavit filed in support of the petition,^{theHighCourtmaybepleased}

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t

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pleased stay of all further proceedings I.A.No.161 of 2023 in I.A.No.207 of 2022 in O.S.No.487 of 2015 on the file of Court of Additional Senior Civil Judge, Eluru, dt. 03-07-2023 and pass

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lA NO: 1 OF 2025

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to Extend the interim orders granted in CRP.No. 2073 of 2023 dt:28-08-2023 in the interest of justice, and pas

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Counsel for the Petitioner:

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1.P N MURTHY

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Counsel for the Respondent(S):

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1.G.V.ANAND KUMAR

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The Court made the following:

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ORDER:

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been filed by the petitioner/defendant This Civil Revision Petition has lANo.161 of 2023 in the order dated 03.07.2023 passed in challenging I.A.No.207 of 2022 in O.S.No.487 of 2015 on the file^{ofCourtofAdditional} Senior Civil Judge, Eluru.

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The 1 St respondent/plaintiff filed the aforesaid suit seeking^permanent injunction against the petitioner/defendant herein^{wherein,thepetitioner/1} St written statement denying the contentions of the

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defendant herein has filed a the said suit, the 1®^ respondent/plaintiff filed

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1®* respondent/plaintiff. Pending l.A.No.207 of 2022 with a request to appoint an advocate^{commissionerto} note down the physical features of the plaint schedule^{propertyandthesame} Court below vide order dated 17.10.2022, by appointing

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was allowed by the to note down the physical

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one Ch.N. Sirisha as advocate commissioner with the assistance of Mandal

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features of the plaint schedule property the advocate

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Pursuant to the same

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Surveyor, Pedavegi mandal. notice to Tahsildar, Pedavegi mandal to depute

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commissioner got issued a Mandal Surveyor, Pedavegi mandal to assist the advocate^{commissioner,but,} to assist the advocate

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the Tahsildar has deputed the village surveyor commissioner. Accordingly, the Village Surveyor assisted the advocate with three male surveyors and

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commissioner on 11.02.2023 along subsequently, the advocate commissioner addressed a letter to the 1 R.S.No.372/1 Medinaraopalem belongs to

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respondent/plaintiff stating that

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Denduiuru mandal, Chakrayagudem belongs to Pedavegi mandal, Munduru belongs to Pedavegi mandal and that the said R.S., number is in the boundary of three villages; she further stated that she has not found survey stones of village boundaries and she could not conduct the survey. As the Village Surveyor is not acting diligently, the respondent/plaint^iffhasfiled I.A.No.161 of 2023 under Section 151 C.P.C., to permit the advocate commissioner to take the assistance of District Surveyor, Eluru for demarcating the suit schedule property. The Court below, after perusing the material available on record, has allowed the application filed by the 1 St respondent/plaintiff vide the impugned order dated 03.07.2023 and has directed advocate commissioner to take the assistance of the District Surveyor, Eluru for refixing and demarcating the suit^{schedulelandandto} submit a report. Challenging the said order dated 03.07.2023, the petitioner/1 defendant has filed the present civil revision petition. 3. When the civil revision petition came up for hearing on 28.08.2023, this Court has granted stay of operation of the order dated 03.07.2023 in I.A.No.161 of 2023 in I.A.No.207 of 2022 in 0;S.No.487 of 2015 on the file of Additional Senior Civil Judge, Eluru, initially for a period of three weeks and the same was extended thereafter from time to time.

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Heard Sri. P.N. Murthy, learned counsel for the petitioner^andSri.G.R. Anand Kumar, learned counsel for the respondent No.1.

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/.

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During the course of hearing, learned counsel for the petitioner contended that the 1®’ respondent has filed O.S.No.487^{of2015againstthe} petitioner herein seeking permanent injunction for^{thesuitscheduleproperty.} After completion of evidence, the 1®‘ respondent filed^{I.A.No.207of2022for} appointment of advocate commissioner to not the physical^{featuresofthesuit} schedule land, which is nothing but collecting evidence after completion of trail. The said application was allowed and the advocate^{commissibnervisited} the suit schedule land along with the 1®* respondent,^{however,intheabsence} of the petitioner.

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He further contended that the 1®^ respondent has once again filed I.A.No.161 of 2023 before the Court below seeking assistance^{ofthedistrict} surveyor for measuring the land. When the suit filed by the 1®^ respondent is for permanent injunction, there is no necessity of^filing an^application for appointment of an advocate commissioner to measure^{thesuitscheduleland.} The trial Court has erroneously allowed the application by duly observing that the object of the local investigation by the advocate^{commissioneristoobtain} evidence which could be drawn only from the spot inspection.^But,however, learned counsel for the petitioner stated that allowing such^application would be nothing but permitting the plaintiff to collect^{evidenceaftercompletionof} the trial. As such, requested to allow the revision petition by setting aside the order dated 03.07.2023.

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On the other hand, learned counsel for the 1®‘ respondent^supported the order passed by the trial Court in alt aspects^{andsubsequently,requested} this Court to dismiss the revision petition.

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Appointment of Commissioner etc., is contemplated under^Section75of Code of Civil Procedure and Order XXVI Rules 9 and 10 deals^aboutthe procedure to be followed by the Commissioner, which are extracted

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hereunder;

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“Section 75 - Power of court to issue commissions:^{-Subjecttosuch} conditions and limitations as may be prescribed, the^courtmay issue a commission-

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to examine any person;

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to make a local investigation;

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to examine or adjust accounts; or

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to make a partition; 5. to hold a scientific, technical, or expert investig'ation,

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to conduct sale of property which is subject to speedy^andnatural decay and which is in the custody of the Court pending the

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determination of the suit;

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to perform any ministerial act.

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Order XXVI Rules 9 and 10: -

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Commissions to make local investigations.—In any suit in which the Court deems a local investigation to be requisite or^{properforthepurpose} of elucidating any matter in dispute, or of ascertaining^{themarket-valueof} any property, or the amount of any mesne profits or^{damagesorannual} a commission to such person as it thinks net profits, the Court may issue fit directing him to make such investigation and to^{reportthereontothe} Court;

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10. Procedure of Commissioner —

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such local inspection as he deems (1) The Commissioner, after the evidence taken by him, shall necessary and after reducing to writing return such evidence, together with his report in writing signed by him, to the Court. in suit. Commissioner may be (2) Report and depositions to be evidence in examined in person.—The report of the Commissioner and the evidence not the evidence without the report) shall be evidence in taken by him (but of the record; but the Court or, with the the suit and shall form part of the parties to the suit may examine the permission of the Court, any Commissioner personally In open Court touching any of the matters referred to him or mentioned in his report, or as to^{hisreport,orastothe} manner in which he has made the investigation.

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(3) Where the Court is for any reason dissatisfied with the proceedings of direct such further inquiry to be made as it shall the Commissioner, it may l think fit.”

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Order XXVI 9. Admittedly, the object of issuance of commission under matter in dispute but not to Rules 9 and 10 of C.P.C., is to elucidate any Advocate Commissioner cannot be appointed collect or gather evidence. An for making an enquiry about factum of possession of^{thepropertyindispute,} out evidence and not elucidating the matter in which is nothing but fishing dispute.

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In Bandaru Mutyalu Vs. Palli Appalaraju', learned single^Judgeof there is controversy as to composite High Court held that in situations where identification, location or measurement of the land,^{localinvestigationshould} aware of the report of the be done at an early stage so that the parties are

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Commissioner and go to trial prepared and the object of local investigation under Order XXVI, Rule 9 of the Code which cannot be littled.

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On a perusal of the impugned order dated 03.07.2023, it can be observed that the advocate commissioner, in her letter addressed to the 1st respondent/plaintiff has stated that she is having no valid record available due to which she could not conduct the survey and that if surveyors of the aid villages assist her, she could refix and demarcate the R.S.Nos.372/1 and 372/2. Considering the same, the trial Court observed as under:

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“...When, there is a dispute over the extent, measuring of the suit property with the help of Surveyor and the plan thereon would considerably reduce the oral evidence. The object of the local investigation is to obtain evidence which could be based on only from the spot and the Inspection. Report of the Advocate Commissioner would enable the record in resolving the contentious points. Measuring property of the petitioner would not cause any prejudice to the rights and contentions of the respondents.

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Under similar circumstances, the High Court of Madras in B. Manimurugan Vs. K.S. Krishna^, while relying upon various other judgments of the same High Court, dismissed the application for appointment of Advocate Commissioner, stating that in a suit for injunction. Advocate Commissioner need not be appointed, and the petitioner must prove possession through oral and documentary evidence.

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In view of the foregoing discussion, as the necessity of appointing an advocate commissioner to measure the suit schedule land does not arise as

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^ 2017 Supreme (Mad) 783

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the subject suit was filed by the respondent/plaintiff seeking permanent injunction restraining the petitioner/1®* defendant from interfering with the suit schedule property, this Court is of the opinion that^{thetrialCourthaserredin} appointing an advocate commissioner as requested by the 1 St respondent/plaintiff.

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Accordingly, this revision petition is allowed and the order dated 03.07.2023 passed in I.A.No.161 of 2023 in I.A.No.207^{of2022inO.S.No.487} of 2015 on the file of Court of Additional Senior Civil Judge, Eluru is hereby set-aside. No costs.

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Consequently, miscellaneous applications, pending, if any, shall also

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stand closed.

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Sd/- K SRINIVASA RAJU ASSISTANT REGISTRAR

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//TRUE COPY//

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SECTION OFFICER

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To