1. Heard Sri V.R Reddy Kovvuri, the Counsel representing the revision petitioners and Sri Kodandarami Reddy, the Counsel representing the respondent.
2. The matter is coming up for admission. This Court ordered notice before admission on 20-9-2005 and interim stay was granted for a limited period. In view of the fact that the Counsel entered appearance on behalf of the respondent - plaintiff, the C.R.P itself is being disposed of finally. The petitioners, the defendants in O.S No. 141/2002 on the file of Junior Civil Judge, Lkkireddipalle, filed I.A No. 284/2005 in O.S No. 141/2002 for appointment of Commissioner for the purpose of measuring and locating S. No. 277 and suit schedule property as per boundaries with the assistance of Mandal Surveyor, Galiveedu and file his report along with sketch and photos if necessary, in the interest of justice. The said application was resisted by respondent - plaintiff by filing a counter and the learned Judge after recording certain reasons dismissed the said application. Aggrieved by the same, the present C.R.P is preferred.
3. Sri V.R Reddy Kovvuri, the learned Counsel had taken this Court through the contents of the affidavit filed in support of the application and would maintain that when there is serious dispute about the location of the plaint schedule property and when specific stand was taken that the boundaries are not the correct boundaries in relation to the title deed, it would be always just and convenient if an Advocate Commissioner is appointed to locate the same with the assistance of the Mandal Surveyor. The learned Counsel also pointed out that the defence taken in the written statement had not been appreciated properly. Further the Counsel would maintain that in the cross-examination of P.W 1, P.W 1 himself deposed that he has no objection for appointment of Commissioner to measure the land with the boundaries. In the light of the same and also in the light of the vague counter filed by respondent in the said application, the dismissal of the application for appointment of Commissioner cannot be sustained.
4. Per contra, the Counsel representing respondent - plaintiff would contend that in the light of the specific stand taken by the defendant in the written statement that the very sale-deed is a nominal one and the relationship between the parties is that of debtor and creditor, this aspect of location of the property would fall into insignificance. The learned Counsel also had taken this Court through the reasons recorded by the learned Judge and would maintain that the dismissal of the application is justified in the facts and circumstances.
5. Heard the Counsel on record. On a perusal of the impugned Order, the application was dismissed on the main ground that the suit schedule property is only in Sy. No. 277-A1, Acs. 3-00 cents out of Acs. 26.54 cents but not Acs. 0.95 cents in S. No. 277, Acs. 0.75 cents in S. No. 282 and Acs. 3.50 cents in S. No. 283 and the respondent filed the suit schedule property with specific boundaries and extent and hence there is no need to appoint Advocate Commissioner since survey No. 277 schedule property is given in specific boundaries and extent and no prejudice would be caused to the petitioners-defendants if the petition is dismissed. This is the approach which had been adopted by the learned Judge. In the affidavit filed in support of the application for appointment of Commissioner, stand was taken that the 1st defendant never executed the registered sale deed - Ex. A.1 in favour of the plaintiff but the 1st defendant borrowed an amount of Rs. 22,500/- from the plaintiff on condition to repay the same and the 1st defendant executed a nominal registered sale deed in his favour in token thereof. Thus, the relationship between the parties is that of creditor and debtor and not that of vendee and vendor. In the said affidavit it was further explained that the defendants got Acs. 6-00 in S. No. 277 and the boundaries given in the plaint schedule are not in existence and the boundaries are fictitious and there is no basis to mention the boundaries in the plaint and S. No. 277 was not sub-divided even to this day. It was also explained that after grant of police-aid by the learned Judge, the plaintiff himself paid challan of Rs. 100/- to M.R.O, Galiveedu and the Surveyor visited the suit schedule property with the request of the plaintiff and had taken the measurements and found that within the plaint schedule boundaries more than Ac. 5-00 of land is situated and P.W 1 also admitted the payment of challan. Certain other further details relating to the well and the irrigation facilities also had been explained. In the counter filed the allegations no doubt were denied and specific stand was taken in Para 4 that it is false to state as per the boundaries shown in the plaint, the property is an extent of Ac. 0-95 cents in S. No. 277 and that he is enjoying an extent of Acs. 3-00 of land in S. No. 277. It was also averred that the petitioners filed this application to develop the case by way of Commissioner's report and hence there is no necessity to appoint an Advocate Commissioner. In substance, this is the stand taken by the other side. In the cross-examination of P.W 1, P.W 1 deposed “I have no objection to get measured the land within the boundaries of the suit schedule property by appointing an Advocate-Commissioner.” Be that as it may, it may be appropriate to have a look at the specific pleading in the written statement in relation thereto, wherein it was pleaded as hereunder:
“The boundaries given in the plaint schedule do not exist on ground and they do not correlate to any of the extent in Ac. 6-00 situate in S. No. 277. Thus the boundaries given in the plaint are fictitious and the plaintiff has no basis to mention such boundaries in the plaint. Thus the property covered under the document dated 5-10-1995 whether it is called as sale deed or mortgage deed, is not the property mentioned in the plaint. Thus this defendant's father never executed the document dated 5-10-1995 for the plaint schedule property but he has executed the same with a view to mortgage Ac. 3-00 of land in S. No. 277 but not the plaint described schedule property.”
6. It is needles to say that the defendant is entitled to take inconsistent stands. It is true that the defendants-revision petitioners had taken the stand that the title deed is a nominal one but at the same time specifically stated that the boundaries are not the correct boundaries and such property on land is not in existence. In the light of this alternative stand, inasmuch as the identification or location of the property in relation to the title deed had been specifically prayed for, the learned Judge instead of exercising the discretion to appoint a Commissioner had negatived the relief recording certain reasons. The question is whether such discretion to be exercised by the learned Judge had been exercised properly in the facts and circumstances of the case. Order XXVI Rule 9 of the Code of Civil Procedure (hereinafter in short referred to as ‘Code’) reads as hereunder:
Commissions to make local investigations:— In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government had made rales as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.”
7. The words “in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute” assume some importance. The issuance of Commission for local investigation would depend upon the facts and circumstances of a particular given case and no hard and fast rule can be laid down in this regard. The words “the Court deems” would indicate that it is the satisfaction of the Court which is more essential, than the request which may be made by the parties, and it is needless to say that the satisfaction of the Court is a precondition for issuance of a Commission. In Chintapatla Arvind Babu v. K. Balakistamma, AIR 1992 AP 300, the learned Judge of this Court held that the report of the Commissioner appointed under Order XXVI Rule 9 is evidence and it is generally more credible evidence and the expression ‘local investigation’ used in Order XXVI Rule 9 is wide enough to include ‘localisation with reference to the documents of title.’ In Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad. 33, the learned Judge of Madras High Court at Para 9 observed as hereunder:
“Coming to the question as to whether on the basis that the order passed by the Court below is a case decided, there is a warrant for interference within the meaning of Section 115 of the Code, I find that it is so. A controversy, as we could see from the pleadings, has arisen as to whether the constructions put up by the third defendant are within his land or whether they have encroached into the lands of the plaintiff. A local investigation is the best way to find out the position and the party, namely, the third defendant coveting to place the evidence before the Court through local investigation by the Commissioner cannot be shut out of that right. A misconception has weighed in the mind of the Court below when it reasoned that there is no dispute about the ownership of S. No. 289/1 by the third defendant. That is not the point in issue. Shutting out the evidence which a party is entitled to place before Court to substantiate his case, definitely decides that right of the party, adversely against him and in this view, the order passed by the Court below is a ‘case decided’ and apart from that, on merits the order passed by the Court below comes within the mischief of the ratio adumbrated in Section 115 of the Code. There has been a failure to exercise jurisdiction vested in it by the Court below to a patent misconception of the position and this obliges me to interfere in revision.”
8. In R. Narasimhaiah v. Sakammanamma, 2001 (1) AIHC 88 (Kar.), it was held that rejection of an application for appointment of Commissioner where the appointment was prayed for to find out the actual position of property in dispute, rejection of such application on the ground that evidence had not commenced cannot be sustained. The learned Judge placed reliance on the decision in K. Raghunath Rao… v. Smt. Tumula Jailaxmi…., AIR 1988 Ori. 30. Reliance also was placed on a decision of this Court in P. Pedda Saidaiah v. T. Padmavathi, 1997 (5) ALT 818, wherein the learned Judge of this Court observed as hereunder:
“From the narration it is seen that whether any of the petitioners in the revision petition encroached upon the land belonging to the respondent or the respondent is claiming more than what he has purchased by registered sale deed dated 5-11-1973. 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. On the other hand, I feel it is the duty of the Court do dispose of the interlocutory applications filed by the parties during the pendency of the suit within a reasonable time. Having failed in discharge of its duty the Court cannot put the litigant to sufferance.”
9. In H.V Nagendrappa v. M.H Hanumappa, 2000 (5) AIHC 3866 (Kar.), it was held that the appointment of Commissioner is within the discretion of the Court and the discretion can be exercised by the Court in accordance with the circumstances of each case. Similar view had been expressed by the Madras High Court in Saraswathy v. Viswanathan, 2002 (2) CCC 186. In Payani Achuthan v. C.H Fisheries Development Co-operative Society, AIR 1996 Ker. 276, the learned Judge of Kerala High Court observed as hereunder:
“The main controversy in this case is as to whether the defendants are in possession of 105 acres or in excess of it, by encroaching into the land of the plaintiff. In a suit for injunction to restrain the defendants from interfering with the possession due to alleged encroachment into the land of the plaintiff, one of the methods to find out as to whether or not there is encroachment is to have the local investigation done by a competent Commissioner. In Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad. 33, it is observed as follows:
“The object of the local investigation under Order 26 Rule 9 is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but could be taken only from its peculiar nature on the spot. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner in effect is a projection of the Court appointed for a particular purpose. In this regard the implication of Order 26 Rule 10 cannot be lost sight of when it says that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. A party has a right to place evidence which he could require to substantiate his case before the Court and it is the duty of the Court to receive such evidence unless there are other justifiable factors in law to decline to receive it. This right of the party to adduce evidence gets adjudicated in the interlocutory proceedings under Order 26 Rule 9. When the Court declines to issue the Commission asked for to make local investigation that order certainly disposes of the right claimed by the party to place the requisite evidence on his behalf. Therefore, an order refusing to appoint a Commissioner under Order 26 Rule 9 to make local investigation and report is a “case decided” and hence revisable under Section 115.” I agree with the above view. The Court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner. Refusal of the request of the party to appoint a Commissioner under Order 26 Rule 9, C.P.C, to make a local investigation in an appropriate case amounts to failure of exercise of jurisdiction vested in it. In this view of the matter, I find that the impugned order cannot be sustained.
For the reasons stated above, the revision is allowed. The impugned order is set aside. The learned Munsiff is directed to appoint the Commissioner as prayed, at the expense of the plaintiff.”
10. The principles relating to the appointment of Commissioner though well settled quite often Courts would be coming across such applications. It is not a case where at a very belated stage the application had been moved. The evidence of the plaintiffs side had been over and at the stage of the defendants' evidence, this application was moved. Apart from this aspect of the matter, clear stand had been taken even in the written statement relating to the identity of the property and the boundaries being wrong boundaries. Apart from this aspect of the matter, P.W 1 himself in cross-examination deposed that he had no objection for appointment of Commissioner for the purpose of measuring the land within the specified boundaries. In the light of the facts and circumstances this Court is of the considered opinion that the learned Judge had not exercised the discretion properly and the exercise of discretion is not in accordance with law. It is needless to say that though these are discretionary orders, the Courts are expected to exercise the discretion judiciously and the exercise of discretion can be never whimsical or fanciful. Hence, this Court is left with no other option except to set aside the order impugned in the C.R.P and accordingly, the C.R.P is hereby allowed. No costs. It is needless to say that the learned Judge to take further steps at an early date as expeditiously as possible to appoint a Commissioner with such suitable directions inclusive of taking assistance of a Surveyor for the purposes indicated therein.
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