Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (the Code, for short) requesting to appoint an Advocate Commissioner to visit the suit schedule properties and note down the physical features of the suit C schedule property and the existence of a road-C schedule property and file a report.=the entire property is divided as A to G parts and that out of that A to G, C schedule property is a road carved out and that the plaintiff also relies upon a plan to that effect and that in turn the defendants are contending that there is no road in existence as claimed by the plaintiff, had eventually appointed a commissioner while observing that there are no tenable objections in the counter and that no prejudice would be caused if a commissioner is appointed.In the result, the Civil Revision Petition is dismissed with costs. the trial court shall consider the probative value of the Commissioners report at the appropriate time having regard to the facts and the circumstances of the case, however, after giving an opportunity to both the parties to file objections, if any, to the said report.

THE HON'BLE SRI JUSTICE  M. SEETHARAMA MURTI        

Civil Revision Petition no.1414 of 2014

22-02-2016

Mohammed Jaffer Abdul Qadeer Qureshi.Petitioner  

Aziz-ur-Rehman Qureshi and 5 others .Respondents  

Counsel for the Petitioner: Sri Chavali Ramanand

Counsel for Respondents 1 to 4: Sri T. Janardhan Reddy

<Gist :

>Head Note:

? Cases referred:

1.2009(5)ALD 459
2.2014(5) ALD 376
3.2016(1) ALT 134

THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI          

Civil Revision Petition No.1414 of 2014

ORDER:
        This civil revision petition under Article 227 of the Constitution of
India by the plaintiff is directed against the order and decretal order dated
02.04.2014 of the learned III Additional District Judge, Ranga Reddy
District passed in IA.No.1104 of 2013 in IA.No.918 of 2013 in OS.No.1228
of 2013 filed by the defendants 1,3,4 and 5 under Order XXVI Rule 9 read
with Section 151 of the Code of Civil Procedure, 1908 (the Code, for
short) requesting to appoint an Advocate Commissioner to visit the suit
schedule properties and note down the physical features of the suit C
schedule property and the existence of a road-C schedule property and file
a report.
2.      I have heard the submissions of the learned counsel for the revision
petitioner/plaintiff and the learned counsel for the respondents/defendants
1,3,4 and 5.  I have perused the material record.
3.      The said defendants in support of their request for appointment of an
advocate commissioner inter alia urged, in the affidavit of the 5th defendant,
as follows:
        The plaintiff brought the suit for partition and allotment of 2/13th
share in ABDEF and G schedule properties and for a perpetual injunction
restraining the defendants including the present defendants from altering the
nature or physical features and causing any obstruction or obstacle or
hindrance on the use of the C schedule property as a road and for recovery
of money.  In the said suit, the plaintiff had also filed IA.No.917 of 2013 for
grant of a temporary injunction in respect of C schedule property.
However, there is no road as described in C schedule property.  Even the
police of Pahadisheriff Police Station inspected the land on a complaint of
the plaintiff and had closed the said complaint as there was no road as
alleged.  The plaintiff is trying to create a road by obtaining order from the
Court (trial Court).  In order to know the existence or otherwise of such road
as C schedule property in the entire suit schedule property, it is just and
necessary to appoint an Advocate Commissioner.  Hence, the petition is filed
for the purpose mentioned in the petition.
4.      The said application was resisted by the plaintiff by filing a counter
affidavit inter alia contending as follows:
     The material allegations in the affidavit filed in support of the petition
are false.  The contentions that there is no road as described in the C
schedule property and that the Police of Pahadisheriff Police Station
inspected the land on complaint of the plaintiff and had closed the said
complaint as there was no road etcetera are all false.  The complaint was
never closed.  The complaint does not relate to the verification of the
existence of the road.  The contents of the said complaint have no nexus to
the relief sought in the instant application nor are they relevant for deciding
the instant application.  The plaintiff is trying to create a road is incorrect.
It
is not just and necessary to appoint an Advocate Commissioner for the
purpose sought for by the defendants.  The existence or otherwise of the
road can be proved by adducing necessary evidence.  Appointment of an
Advocate Commissioner is neither necessary nor permissible; and the
appointment of an Advocate Commissioner for the desired purpose
tantamounts to collection of evidence. The petition is devoid of merit and is
liable to be dismissed.
5.      The Court below by the order impugned had allowed the application
and appointed an Advocate Commissioner and directed for entrustment of a
warrant to him to execute the warrant in respect of the following works.
1.      The Commissioner is directed not to take photographs or video graph the
property;
2.      The commissioner is directed t draw rough sketch showing the existence of
the
schedule C property;
3.      The commissioner is directed not to give his/her opinion;
4.      The commissioner is at liberty to take the assistance of the surveyor if
necessary;
5.      The commissioner fee is fixed at Rs.3,000/- payable by the petitioner
directly.


Aggrieved of the said orders, the plaintiff is before this Court.
6.      The learned counsel for the plaintiff would contend that the plaintiff
had earlier filed two interlocutory applications in IA.Nos.917 and 918 of
2013 for grant of a temporary injunction in respect of C schedule property;
and for a temporary injunction restraining the defendants from alienating the
suit schedule properties to third parties; and the IA.No.918 of 2013 was
allowed on 27.01.2014;  however, the present application viz., IA.No.1104
of 2013 was filed in IA.No.918 of 2013, when it was pending; and as the
said IA.No.918 of 2013 was already disposed of, the present application,
which is an interlocutory application in the said IA is not maintainable and is
liable for dismissal as the main IA was already disposed of; the plaintiffs
only contention is that the mother of the parties, who is admittedly the owner
of a large extent of Ac.54.00 cents of land, has only carved out a private
road in the land adjacent to the land gifted to the plaintiff under a oral Hiba,
which was later reduced into writing;  the said fact is also acknowledged by
the revenue authorities; and no Commissioner can be appointed for
collection of any evidence; the existence or otherwise of a road can be
established by adducing evidence; to prove the existence of a road and to
disprove the same evidence can be adduced; and, hence, for the said purpose
a Commissioner cannot be appointed; and by the words carving out a road
as stated in the plaint, the plaintiff only intended to say that there was no
black top road or a kacha road, but, only a passage was provided to the
property gifted to the plaintiff; the order, which was passed without
application of mind by the trial Court, is erroneous and unsustainable.
7.      On the other hand, the learned counsel for the defendants while
supporting the impugned orders of the Court below inter alia contended that
the defendants filed written statements specifically contending that there is
no road as being claimed by the plaintiff in the plaint and that the C
schedule property is not a road and that there is no road in existence on land
and that appointment of a Commissioner to note down the physical features
of the property and to file a report after noting the features as to the
existence or otherwise of a road would not amount to collection of evidence
and that, therefore, the order impugned is sustainable both under facts and in
law.
8.      In reply, the learned counsel for the plaintiff would submit that since
both the IAs filed for injunction in IA.Nos.917 and 918 of 2013 are already
allowed for the purpose of maintenance of the road and as a Hiba along with
the copy of the property gifted showing the existence of a road, which is
carved out, and a surveyor report are also filed, no purpose would be served
by now appointing an advocate commissioner and that the report of the
commissioner, if any, filed is not going to advance the defence of the
defendants.
9.      The learned counsel for the defendants brought to the notice of the
Court, the fact that a Commissioner who was already appointed made a visit
and filed his report and that the plaintiff herein filed IA.No.1136 of 2014 for
discarding the said report and the said application was dismissed giving an
opportunity to the plaintiff to file objections to the report and that in the
circumstances, the revision petition is not maintainable.
10.     Before proceeding further, it is apt to note that the learned counsel for
the plaintiff placed reliance on a decision of this Court in Sagi Vijaya
Ramachandra Raju and others v. Koppisetti Satyanarayana and others
in support of the contention that a Commissioner cannot be appointed for
collection of evidence and also in support of the contention that the fact that
the Commissioner appointed by the Court had already filed the report will
not make the revision infructuous, as the report would be kept out of
consideration and will not be looked into by the trial Court, if the revision
filed by the plaintiff is allowed, and that, therefore, the revision petition
can
be entertained.
11.     On the other hand, the learned counsel for the defendants placed
reliance on the following two decisions.  (1) Badana Mutyalu and another
v. Palli Appalaraju  and (2) Jajula Koteshwar Rao v. Ravulapalli
Masthan Rao .
12.     I have gone through the precedents.  In Sagi Vijaya Ramachandra
Raju and others Badana Mutyalu (1 supra) cited by the learned counsel
for the plaintiff, the suit is one for perpetual injunction whereas in the case
on hand, the suit is for partition of A,B,D,E,F and G schedule properties,
besides injunction in respect of C schedule property, which is the property
in question and which is said to be a road carved out, and for recovery of
money.  In the said cited decision, the facts disclose that in that suit for
perpetual injunction a dispute was also about the identity of property.  In the
decision in Badana Mutyalu (2nd cited) the facts disclose that the parties are
neighbours and there is an allegation that property belonging to the
respondent is being interfered with by the petitioner; and, therefore, it was
observed that it is incumbent on the Court to decide where the disputed
portion is located and whether or not it forms part of the property being
claimed by the respondent.  In the decision in Jajula Koteshwar Rao (3
cited), the suit is one filed for declaration of right in the plaint schedule
property and consequential mandatory injunction for removal of a disputed
wall on the allegation of encroachment/occupation of the land/site belonging
to the respondent and his family in their absence from the village.
Ultimately, the decisions in the three cases turned on the facts of the cases.
There is no hard and fast rule or a settled possession of law that an advocate
commissioner cannot at all be appointed for any purpose in a suit for
perpetual injunction and it cannot be laid down as a rule of thumb that in no
suit for perpetual injunction, an advocate Commissioner can be appointed;
however, the law is well settled that a Commissioner cannot be appointed to
find out as to who amongst the parties is in possession of the property as it is
the function of the Court to decide the issue as to who amongst the parties is
in possession of the property and the said judicial function cannot be
delegated to an advocate commissioner.  Under law, in any suit in which the
Court deems local investigation is requisite or proper for the purpose of
elucidating any matter in dispute, the Court may issue a commission to an
advocate or any competent person and direct to make such investigation and
to report to the Court.
13.     Reverting to the facts of the case, it is to be noted that from the
submissions, the following facts emerge: One Akthari Begum who is
mother of the parties is the owner of Ac.54.00 guntas of land.  Some
property out of it was acquired.  She had gifted Ac.6.00 guntas to the
plaintiff under a oral Hiba is the claim of the plaintiff.  The defendants are
disputing the same and are inter alia pleading cancellation of the same. She
had also gifted similarly Ac.6.00 guntas, Ac.7.08 guntas and Ac.2.20 guntas
to the 4th, 5th and 6th defendants. Excluding the land which was acquired and
also the lands that are gifted, the suit is filed for partition of the remaining
extents of land i.e., ABDEF and G properties by inter alia stating that the
C schedule property is the portion carved out for road in that large extent
of property.  It is not in dispute that in the plaint it is averred that the
said
Begum has carved out a private road in the land left out after acquisition by
the Government situated in Sy.No.621, 622, 623 and 624 of Mankhal
village, Maheshwaram Mandal and the same has also been acknowledged by  
the revenue authorities for the use of herself and her legal heirs.  The
defendants are denying the existence of any such road on land and,
therefore, they had sought for the appointment of an advocate-Commissioner
to note down the physical features, particularly the existence of road, if any,
as C schedule property on land in the suit schedule properties.
14.     Coming first to the contention that the instant application is filed in
IA.No.918 of 2013 and that the said IA.918 of 2013 was already disposed of
in January 2014 and that, therefore, this instant IA is no longer maintainable,
what is to be noted is that it is fairly stated that after the disposal of the
said
IA.No.918 of 2013, an amendment of the instant petition was sought and, as
of now the defect, which is purely a technical defect, stands cured.
15.     Dealing next with the contentions that a Commissioner cannot be
appointed for gathering evidence and that the existence or otherwise of a
road, which is borne out by the Hiba and the surveyors report, can be
proved by adducing oral evidence by both the sides and that, therefore, the
commissioner cannot be appointed, what is to be noted is that the law is well
settled that for noting down physical features a Commissioner can be
appointed.  The existence or otherwise of a road, which is being described as
C schedule property, is a physical feature is not in dispute.  Therefore, this
contention has no substance.
16.     Dealing lastly with the contention that the report of the Commissioner
is not going to serve any purpose, be it noted that issuance of Commissions
is dealt with in Section 75 of the Code, which deals with Incidental
Proceedings; whereas the other interlocutory proceedings like grant of
temporary injunctions and appointment of receivers etcetera are dealt with in
Section 94 of the Code which deals with Supplemental Proceedings.
Supplemental proceedings are separate proceedings in a Original action, in
which the Court is called upon to exercise jurisdiction in aid of the judgment
in action. Incidental Orders are those, which follow as a matter of course
being necessary complements in the main order without which the matter
would be incomplete or ineffective. [Vide M A Mohamed Ali v. R
Ramadoss (AIR 1966 Madras 441)].  Thus, incidental orders are
complementary in nature and are intended to assist the Court in arriving at a
just decision in the lis unlike supplemental orders.  The request for
appointment of a commissioner for noting down the physical features of a
property, in the well considered view of this court, by no stretch of
imagination can be called as an attempt to gather evidence.  The court below
having noted that the claim of the plaintiff is that the entire property is
divided as A to G parts and that out of that A to G, C schedule property is a
road carved out and that the plaintiff also relies upon a plan to that effect
and
that in turn the defendants are contending that there is no road in existence
as claimed by the plaintiff, had eventually appointed a commissioner while
observing that there are no tenable objections in the counter and that no
prejudice would be caused if a commissioner is appointed.

17.     Having regard to the reasons and the legal position obtaining, this
court is satisfied that the order of the court below which is sufficiently well
reasoned and which is proper in the facts and circumstances of the case calls
for no interference.
18.     In the result, the Civil Revision Petition is dismissed with costs.  It is
needless to state that the trial court shall consider the probative value of the
Commissioners report at the appropriate time having regard to the facts and
the circumstances of the case, however, after giving an opportunity to both
the parties to file objections, if any, to the said report.  In view of the
desire
of the learned counsel, this Court deems it appropriate that a direction can be
given for expeditious disposal of the suit.  Accordingly the Court below is
directed to dispose of the suit as expeditiously as possible and preferably
within a period of three months from the date of the receipt of a copy of this
order.
     Miscellaneous petitions pending, if any, in this civil revision petition
shall stand closed.
__________________________  
M. SEETHARAMA MURTI, J    
Date: 22.02.2016