Mallikarjuna Srinivasa Gupta v. K. Sheshirekha .

1. This revision petition is filed by the plaintiff against the order of the Principal Junior Civil Judge, Sangareddy, dated 22.11.2004

2. The petitioner filed a suit for declaration of title and other reliefs in respect of plot No. 62, as described in the schedule. The contention of the plaintiff is that he purchased plot No. 62 by a registered sale deed, dated 14.08.1991 from his vendors in an approved lay out and that the defendant purchased plot No. 63 on 15.10.1990 through a registered sale deed, that the defendant encroached a portion of plot No. 62. Hence, he filed a suit for declaration of title and other consequential reliefs.

3. During the pendency of the suit, the plaintiff filed I.A No. 1320 of 2004 under Order 26 Rule 9 C.P.C, for appointment of an Advocate Commissioner for local inspection, measurement of plot No. 62 belonging to the plaintiff, identification of plot No. 63 belonging to the respondent with the help of a Surveyor by measuring both the plots according to the lay out approved by the Gram Panchayat.

4. The respondent vehemently resisted the application on two grounds. 1) That the petition filed by the petitioner in an earlier suit for injunction was dismissed on the ground that a Commissioner cannot be appointed in a suit for injunction simplicitor; 2) that the plaintiff cannot gather evidence by measuring the land and note the physical features, etc. Therefore, he resisted the application for appointment of the Commissioner. The lower Court dismissed the application on the ground that the earlier order in a similar interlocutory application filed on the same set of facts seeking the same relief is a bar to the subsequent application. Being aggrieved by the order of the lower court, dated 22.11.2004, the petitioner filed the present revision petition challenging the order of the lower court.

5. The learned counsel for the petitioner submitted that he purchased plot No. 62 in an approved lay out and the defendant encroached into a portion of plot No. 62. Therefore, he filed the suit for declaration of title and for removal of the structure by way of granting mandatory injunction, etc. He further submitted that the appointment of a Commissioner would help both the parties by identifying plot No. 62 and 63 as per the respective sale deeds and as per the approved lay out, which will set at rest the dispute between the parties once for all and it will also help the court to find out whether any portion of plot No. 62 is encroached. Therefore, requested to set aside the order of the lower court and direct the lower court to appoint a Commissioner for local inspection.

6. The learned counsel for the respondent submitted the same argument which was advanced before the lower Court that similar application was dismissed in the earlier injunction suit and that the petitioner cannot be allowed to gather evidence in support of his suit and further contended that the scope of Article 227 of the Constitution of India is very limited and by exercising Article 227, the order of the lower court cannot be set aside unless there is some perversity or illegality or injustice is caused to the petitioner. Therefore, requested to dismiss the revision petition by confirming the order of the lower court.

7. The learned counsel for the petitioner relied on a judgment in Pandiri Pedda Sidaiah v. Thirunagiri Padmavathi (1), 1997 (5) ALD 430 wherein, the learned Single Judge while considering the scope of Order 26 C.P.C, observed that the issue can be effectively settled by getting the lands owned by the petitioners as well as the respondent surveyed by the Revenue authorities with the help of a village map and also tippons if they are available with the revenue authorities. By doing so, the litigation can be put to an end. But the Subordinate Judge by taking a technical ground dismissed the application which is not in accordance with law. The learned counsel for the respondent submitted that though the plaintiff filed, the registered sale deed in support of his contention, he failed to produce the approved lay out to enable the court to appreciate the contentions of the plaintiff. Therefore, by appointing a Commissioner, the evidence cannot be gathered. Therefore, he requested to dismiss the petition.

8. The earlier proceedings were issued on the basis of an injunction suit. The lower court dismissed the application on the ground that in a suit for bare injunction, appointment of the Commissioner is not desirable. The present suit is filed for declaration of title. The petitioner is contending that the defendant encroached a portion of the site. The defendant is contending that he did not encroach the portion of the site and interfere with plot No. 62, which was purchased by the plaintiff. By mere looking into the sale deed or the lay out, it is not possible to determine the rights, unless it is verified whether any portion of the building is constructed in plot No. 62. Therefore, it is essential to consider the request of the petitioner for appointment of the Commissioner for the purpose mentioned therein. The lower court dismissed the application on the simple ground that the earlier application for the appointment of the Commissioner for the same purpose has been dismissed. Therefore, this petition also is dismissed. So far as the exercise of jurisdiction under Article 227 of the Constitution of India is concerned, the learned counsel for the respondent relied on a judgment of the Supreme Court in Surya Dev Rai v. Ram Chander Raj (2), 2003 (5) Supreme 390 wherein, the Supreme Court while considering the scope of Article 227 of the Constitution of India, observed as follows:

“Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power the High Court has been conferred with certain specific powers by sub-Articles (2) and (3) of Article 227 with which we are not concerned hereat. It is well-settled that the power of superintendence so conferred on the High Court is administrative as well as judicial and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar.”

9. There is no dispute regarding the proposition laid down by the Supreme Court. It is an undisputed fact that the power under Article 227 is wider than the one conferred on the High Court by Article 226 and it is also an undisputed fact that the power of superintendence of the High Court is not subject to some technicalities of procedural or traditional fetters, which are to be found in Certiorari jurisdiction. In order to resolve the dispute between the parties and in order to do justice to both parties, it is essential to appoint a Commissioner. By appointing a Commissioner and by local inspection of the disputed land, no prejudice will be caused. On the other hand, it will help the Court to render complete justice. I am therefore, of the opinion that the order of the lower Court cannot be sustained.

10. In the result, the revision petition is allowed. The order of the lower Court, dated 22.11.2004 in I.A No. 1320 of 2004 in O.S No. 82 of 2004 is set aside. The lower Court is directed to appoint a Commissioner for the reliefs mentioned in the application and both parties shall be given opportunity to file work memos before the Commissioner and the inspection shall be made in the presence of both the parties with the help of the Surveyor and with reference to the lay out approved plan of the Gram Panchayat and the title deeds of the respective parties. The lower court at the instance of the petitioner may summon the approved lay out from the Panchayat, if necessary.

11. No order as to costs.