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Judgment
The petitioners/plaintiffs filed the present revision petition seeking to set aside the order dated 29.04.2021 made in I.A.No.318 of 2020 (I.A.No.550 of 2019) in O.S.No.173 of 2019 on the file of the I Additional Junior Civil Judge, Shadnagar.
The plaintiffs filed O.S.No.173 of 2019 under Section 26, read with Order VII, Rules 1 and 2 of the Civil Procedure Code (for short ‘CPC’) seeking relief of declaration and perpetual injunction.
The brief facts of the case are that according to plaintiffs they have right of way through the lands of respondents and other consequential reliefs by easement of necessity acquired by way of prescription for the purpose of carrying agricultural operations in their lands. Per contra, on behalf of respondents, a counter affidavit was filed stating that there is no way through their lands to reach the lands of plaintiffs and that there is other way to reach the lands owned by plaintiffs.
In the said suit, plaintiffs filed I.A.No.318 of 2020 (I.A.No.550 of 2019) under Order XXVI, Rule 9, read with Section 151 of C.P.C., praying to appoint an Advocate Commissioner for the purpose of local investigation and to submit a report about the lands owned by petitioners/plaintiffs and respondents, respectively, and whether the suit schedule way is in existence as shown in the Google maps and photographs.
Per contra, on behalf of respondents, a counter affidavit was filed in I.A.No.318 of 2020 (I.A.No.550 of 2019) denying the averments made by plaintiffs and contending that as the claims made by plaintiffs are hypothetical and imaginary, the petition filed by plaintiffs for appointment of an Advocate Commissioner to localize the suit schedule property is not maintainable and prayed to dismiss the same.
Having regard to the rival submissions made and after hearing both sides, the trial Court dismissed I.A.No.318 of 2020 (I.A.No.550 of 2019) stating that there are no proper and genuine grounds to appoint an Advocate Commissioner and having regard to the judgments rendered by the Hon’ble Apex Court in Sarala Jain and Others Vs. Sangu Gangadhar 2016 SCC OnLine Hyd 49, Mohd Mehtab Khan Vs. Khushnuma Ibrahim Khan 2013 3 ALD 64, and Chandrashekharan Vs. Doss Naidu 2005 SCC OnLine Mad 448, held that the petition cannot be allowed as the same would only aid to creating and collecting evidence, . Aggrieved thereby, this revision petition is filed.
Heard Sri P.Sridhar Reddy, learned counsel for petitioners, and Sri P.Nagendra Reddy, learned counsel appearing for respondent Nos.1 to 18.
Learned counsel for petitioners/plaintiffs contended that the petitioners are not disputing the ownership of respondents over the property, but the dispute is only with regard to the right of way and usage of the suit schedule property. In support of the said contention, he placed reliance on the judgment rendered in C.R.P.No.338 of 2016 wherein, under similar circumstances, an Advocate Commissioner was appointed. Further, he also placed reliance on the judgment rendered in C.R.P.No.1386 of 2012 whereunder, it was observed that an Advocate Commissioner can be appointed in a suit filed for injunction, basing on the plea that there is only one way to the house and the parties are being prevented from using the said way. Furthermore, reliance was also placed on the judgment rendered in C.R.P.No.5837 of 2015 whereunder, it was observed that an Advocate Commissioner can be appointed for demarcation of property. As such, prayed this Court to set aside the impugned the order dated 29.04.2021 and allow the revision petition.
Learned counsel appearing for respondents contended that appointing an Advocate Commissioner would amount to collection of evidence as the dispute between the parties is with regard to the usage of way in the suit schedule property. Though petitioners contend that they are using the way from the time immemorial, according to respondents there is no way from their land. As such, submitted that the trial Court rightly dismissed I.A.No.318 of 2020 in O.S.No.173 of 2019 filed by plaintiffs seeking appointment of an Advocate Commissioner and prayed this Court to dismiss the revision petition.
On hearing either side and on going through the material placed on record, it is noted that the petitioners are not disputing the ownership of respondents over the suit schedule property and the dispute is only with regard to existence of way through the lands owned by respondents.
No doubt an Advocate Commissioner cannot be appointed for making an enquiry about the factum of possession of the property in dispute which is nothing but collection of evidence. The object of Order XXVI, Rule 9 of C.P.C., is not to assist a party to collect the evidence where the party can procure the same. An Advocate Commissioner can be appointed under Order XXVI, Rule 9 of the C.P.C., inter alia for “elucidating any matter in dispute”. In the instant case, the claim for injunction made by the petitioner is based on the plea that there is only one way to reach his lands and that he is being prevented by respondents from using the said way. Any amount of evidence in this regard may not enable the Court to reach a conclusive finding on this aspect. Therefore, a situation such as this would certainly fall within the expression of “elucidating any matter in dispute”. This Court is of the opinion that it would not amount to collection of evidence. It only helps the Court in ascertaining with certainty as to whether there is only one way or any other alternative way to reach the lands of petitioner.
Further, learned counsel for respondent relied on the judgment of this Court in C.R.P.No.5837 of 2015 stating that an Advocate Commissioner cannot be appointed in the present case. The relevant portion of the said order reads as under:
“The trial Court appointed advocate commissioner for fixing boundaries to the property of the respondents only though the petitioner sought for appointment of advocate commissioner to demarcate schedule property and fix boundary stones to his property and the property of the respondents. Apart from that, the relief under clause (b) in the plaint is only to confirm the boundaries since the property was already demarcated twice. As such, appointment of advocate commissioner for the same purpose does not arise. If the suit is filed for fixing boundaries by the Court, then appointment of advocate commissioner would serve purpose to decide the real controversy between the parties but it is not even the case of the petitioner that schedule property is not demarcated. In such case, appointment of advocate commissioner is wholly unnecessary and it is beyond the scope of the suit. The trial Court did not look into the reliefs claimed in the suit; plea of the petitioner regarding survey of land and fixation of boundary stones; and the purpose for which commissioner is sought to be appointed. In those circumstances, the order passed by the trial Court cannot be sustained as it amounts to granting pre-trial decree in view of the law declared in Mohd. Mehtab Khan (1st supra) and it is, therefore, liable to be set aside. Accordingly, the point is answered in favour of the respondents and against the petitioner.”
In the above extracted order, an Advocate Commissioner was appointed beyond the scope of suit, as such, it is observed that it amounts to granting pre trial decree, relying upon the law declared in the judgment of Mohd. Mehtab Khan (supra), whereas, in the present case, the issue involved is only with regard to the existence of way and there is no dispute about the ownership or the boundaries. Further, this Court in C.R.P.No.1386 of 2012 has clearly observed that appointment of an Advocate Commissioner is required in such type of cases to resolve the dispute.
In view thereof, this Court is of the considered view that the appointment of an Advocate Commissioner for the purpose of localizing the suit schedule property and ascertaining whether there is any existence of way through the lands owned by respondents, would not cause any prejudice to respondents. As such, the present revision petition is liable to be allowed.
Accordingly, the Civil Revision Petition is allowed, setting aside the impugned order dated 29.04.2021 made in I.A.No.318 of 2020 (I.A.No.550 of 2019) in O.S.No.173 of 2019, and directing the trial Court to appoint an Advocate Commissioner to ascertain whether the suit schedule way is in existence, as shown in the Google maps and photographs filed by petitioners/plaintiffs. There shall be no order as to costs.
As a sequel, miscellaneous petitions pending, if any, shall stand closed.