APHC010091552020 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3560] SATURDAY,THE TWENTY SECOND DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CIVIL REVISION PETITION NO: 608/2020 Between: 1. M MAHAMMAD RAFEE, S/O. MAKANDAR AMEER KHAN, AGED 39 YEARS, R/O. D. NO. 6-5-455, KALIKAMMAGUDI STREET, TIRUPATI, CHITTOOR DISTRICT. ...PETITIONER AND 1. G KRISHNAVENI ALIAS KRISHNAMMA, W/O. LATE G. CHANDRAMOHAN CHOWDARY, AGED 60 YEARS, R/O. D. NO. 19- 6-30, OLD STV NAGAR, TIRUPATI, CHITTOOR DISTRICT. 2. G V PRASAD, , S/O. LATE G. CHANDRAMOHAN CHOWDARY, AGED 60 YEARS, R/O. D. NO. 19-6-30, OLD STV NAGAR, TIRUPATI, CHITTOOR DISTRICT. 3. D VIJAYA KUMAR, S/O. D. SARANGAPANI CHETTY, AGED 52 YEARS, 0CC- BUSINESS, R/O. D. NO. 6-2-153/A, SAIRAM STREET, TIRUPATI CHITTOOR DISTRICT. 4. G JAGADEESH, S/O. LAKSHMAIAH NAIDU, AGED 56 YEARS, R/O. D. NO. 19-9-29/J-11, NIRMALA NILAYAM, LAKSHMIPURAM, TIRUPATI, CHITTOOR DISTRICT. 5. G SATHISH KUMAR, S/O. G. GOPAL SETTY, AGED 52 YEARS, 0CC- BUSINESS, RIO. D. NO. 1/50, PILAYAR KOIL STREET, SEKKANUR 2 PETTAI, SEKKANUR, USSOOR TALUK, NEAR GOLDEN TEMPLE, VELLORE DISTRICT, TAMIL NADU STATE ...RESPONDENT(S): Counsel for the Petitioner: 1. NIMMAGADDA REVATHI Counsel for the Respondent(S): 1. B RAMESH The Court made the following: ORDER: Heard learned counsel for the petitioner and learned Assistant Public Prosecutor for the respondents. 2. Being aggrieved by and dissatisfied with the order passed by the learned Additional Senior Civil Judge, Tirupati, in I.A.No.106 of 2017 in O.S.No.66 of 2017, the instant Civil Revision has been preferred by the plaintiff/petitioner. 3. In a nutshell, the brief fact of the case is that the plaintiff filed a suit for declaration, mandatory injunction and recovery of possession in respect of the suit schedule property. The suit schedule property has been described under A Schedule, B Schedule and C Schedule separately. It is the contention of the plaintiff/petitioner before the Court below that the defendant has encroached C Schedule property which is part and parcel of the A Schedule property. 4. The defendant filed written statement contending inter alia that the C Schedule property belonged to their purchased property. In that situation, before framing of issues, the plaintiff filed an application under Order XXVI 3 Rule 9 read with Section 151 CPC praying for appointment of Advocate Commissioner to locate the plaint A & C schedule properties. The prayer of the petitioner was turned down by passing the impugned order. Hence, the instant Civil Revision Petition. 5. Perused the impugned order passed by the learned trial Court. 6. The learned trial Court has rejected the prayer of the plaintiff only on the ground that if the petition for local investigation is allowed, it amounts to collection of evidence by the Court on behalf of the plaintiff. 7. The learned counsel for the plaintiff/petitioner submits that this is a suit for declaration and mandatory injunction, without the C scheduled property be properly identified and located, the bone of the contention of the entire suit cannot be decided. He further submitted that the learned trial Court has committed an error in passing the order impugned. The learned trial Court must have proceeded to allow all the parties to place documentary evidences prior to initiation of the trial of the suit. He further submits that a coordinate bench of this Court in Jajula Koteshwar Rao v. Ravulapalli Masthan Rao1, dealt with same issue and has observed that where there is an allegation of encroachment by the defendant for land of the plaintiff, local investigation is must. He referred Para Nos.17, 18 & 19, which read as follows: “17. In the facts and circumstances of the present case, where there is an allegation of encroachment by the petitioner of the land of the respondent, such a contention cannot be accepted since mere oral evidence will not aid either party. 1 2016 ALT 1 134 4 18. The object of the local investigation under Order XXVI Rule 9 CPC is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but can be taken only from the peculiar nature, on the spot. The Commissioner in effect is a projection of the Court appointed for a particular purpose. The law of evidence enjoins upon a party to prove the fact which he relies on and in that sense, an obligation is cast upon the party; and if he fails to discharge that obligation, adverse consequence will follow and he will have to face the repercussions of the same. This right of the party to adduce evidence gets adjudicated in the interlocutory proceedings under Order XXVI Rule 9 CPC. 19. Therefore, I also reject the contention of the petitioner that appointment of an Advocate-Commissioner in the facts and circumstances of the case, amounts to collection of evidence.” 8. He also referred a decision of the Hon’ble High Court of Telangana in Badana Mutyalu and Anr. v. Palli Appalaraju2 wherein a coordinate bench referring to a decision of the Orissa High Court in Mahendranath Parida v. Punanda Parida3 has held that: “16. In Mahendranath Parida Vs. Purnananda Parida and Others, the Orissa High Court held: When the controversy is as to identification, location or measurement of the land or premise or object, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared. The party against whom the report may have gone may choose to adduce evidence in rebuttal. Hence, ordinarily in such type of cases local investigation should not be deferred to a stage after the closure of evidence. I do not mean thereby that in no circumstances can local investigation be sought after the evidence is closed. But ordinarily it should be done before the parties adduced evidence. Hence, I do not accept the contention of Mr.B.Patnaik that inasmuch as the party has a right to and can adduce evidence of a survey knowing person engaged by him privately with reference to identification of location, it is open to the Court to decline to appoint a commissioner for local investigation under Order 26, Rule 9. In this case the controversy can be resolved by locating the wall upon measurement, that is to say, whether it stood on plot No. 306 or plot No. 307. So, the local investigation is essential. The learned Munsif having failed to exercise jurisdiction vested in him, I interfere and vacate the 2 2013 ALT 6 26 3 AIR 1988 Ori. 248 5 impugned order. He is directed to appoint a survey knowing, commissioner.” 9. Learned counsel for the respondents refuting the contentions of the petitioner submits that the learned trial Court has committed no error. He further submits that the learned trial Court has passed the order on the behest of the judgment of the Hon’ble High Court which is mentioned in the impugned order itself. He further submits that the order passed by the learned trial Court is reasonable and the same cannot be set aside. 10. He further submits that, in this case after completion of trial, if it appears that there are some disputes regarding identification of the property, the Court at any time, may appoint Advocate Commissioner to identify the property. At this stage, the learned trial Court has correctly dismissed the application under Order XXVI Rule 9. 11. Having heard the learned counsel for the parties, considering the nature and circumstances of the instant suit, it appears that this is a suit for declaration and mandatory injunction in respect of C Schedule property. More particularly, plaintiff pleaded that A & C schedule properties belonged to the plaintiff but the defendant has encroached over C schedule property. 12. On plain perusal of the schedule of the plaint, it appears that C Schedule property was properly butted and bounded categorically in the plaint itself. The contention of the plaintiff is that, to locate and to identify the alleged portion of encroachment, the plaintiff intended to investigate the suit property by appointing an Advocate Commissioner who with the help of Mandal Surveyor can locate the suit property properly. 6 13. On hearing the learned counsel for the parties, the learned jurisdictional Civil Judge concerned is of the opinion that if the petition is allowed, it would amount of collection of evidence. 14. Now the issue involves in this Civil Revision Petition is that whether the appointment of Advocate Commissioner or accepting report from the Advocate Commissioner is itself a collection of evidence. 15. In deciding the same issue, we have to gone through the proper wordings of Order XXVI Rule 9 CPC. “9. 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 has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” 16 It appears from the provision of Order XXVI Rule 9 that when Court deems a local investigation to be requisite or proper for the purpose of investigating any matter in the suit or ascertaining the fact on ground, the Court may appoint an Advocate Commissioner. 17. In this case, the plaint C schedule property is in dispute. The plaintiff pleaded that the plaint C schedule property belong to him but the defendant pleaded that plaint C schedule property is his purchased property. There are counter affidavits and pleadings. Thus, the entire bone of the contention of the suit devolved upon the identification and location of the plaint C schedule property, whether it is within the A schedule property or it is within the 7 purchased property of the defendant is the moot question to be decided by the learned Civil Court. 18. In this particular case, the learned Civil Judge concerned has followed the decision of the Hon’ble Division Bench wherein admittedly the decision pertains to a suit for injunction. It is admitted fact that in a suit for injunction, identification of suit property is not material. But in this particular case, this is not a suit for injunction rather it is a suit for declaration and mandatory injunction in respect of the plaint C schedule property. 19. It appears to me that in this particular case, the Court can only decide the bone of contention of this matter, if the plaint C schedule property be identified. Thus, if the report of the Commissioner be accepted by the Court, it cannot be a tantamount to be collection of evidence. As in this suit, there are contradictory pleadings between the plaintiff and the defendant claiming their right over the plaint C schedule property. It is the abundant duty of the Court to identify the plaint C schedule property prior to deciding the suit finally. 20. On that view in this particular suit, the appointment of Commissioner and acceptance of report under Order XXVI Rule 9 CPC is not amount to collection of evidence. The provision of Order XXVI Rule 9 CPC make it clear that if the Court deems fit to elucidate any matter in dispute, the Court may appoint an Advocate Commissioner. On that purpose, elucidating any dispute between the parties cannot be termed as collection of evidence on behalf of either parties. 8 21. I make it very clear that after receiving the report of the commissioner, it would be very clear before the learned trial Court that whose claim is justified without which the Court cannot decide the issue properly. 22. Under the above observation, it appears to me that the impugned order passed by the learned Civil Judge concerned is not apparently proper and legal. Accordingly, the same is set aside. 23. The application for local investigation under Order XXVI Rule 9 CPC read with Section 151 CPC filed by the petitioner is considered and allowed. The Court is directed to appoint an advocate commissioner to locate the suit A & C scheduled properties and note down the physical features of the plaint property with the assistance of Mandal Surveyor in presence of both the parties. The Court is further directed to appoint advocate commissioner with a direction that the report of the Advocate Commissioner may be reached to the Court as early as possible, most preferably within a period of six (06) months from the date of passing of this order. 22. Under the above observation, the instant Civil Revision Petition is disposed of. There shall be no order as to costs. As a sequel, miscellaneous applications, pending if any, shall stand closed. _____________________________ SUBHENDU SAMANTA, J Date: 22nd November, 2025 RKS