T. Ravindra Kumar Reddy alias Ravindra Reddy vs P. Chenga Reddy

Ranga Reddy, J.—This revision petition is filed by the 3rd defendant in O.S.No. 187 of 1988 on the file of the Subordinate Judge, Tirupati against the judgment and decree in C.M.A.No. 64/88 on the file of the III Additional District Judge, Chittoor reversing the order of the Subordinate Judge made in I.A. No. 949/88 in O.S.No. 187/88.

The respondent herein filed a suit in O.S.No. 187/88 on the file of the Subordinate Judge, Tirupati for declaration of title and injunction in respect of certain lands against the petitioner (D-3) and some others. Along with that suit he filed I.A.No. 949/1988 for grant of temporary injunction in respect of the same properties till the disposal of his suit. Ex-parte interim injunction was granted and later, after receiving counters and hearing both sides the interim injunction was vacated by an order dated 14-10-1988 in respect of item No. 1 of plaint schedule, holding that the 3rd defendant who is the petitioner herein is in possession and enjoyment of the property and that therefore the respondent-plaintiff is not entitled for injunction. Aggrieved by that order the petitioner-Plaintiff in I.A.No. 949/88 filed C.M.A.No. 64/88 and the III Additional District Judge, Chittoor set aside the order of the learned Subordinate Judge by his order dated 21-6-1991 and granted temporary injunction in respect of item No. 1 also. Aggrieved by that judgment the 3rd defendant has filed this revision.

It is contended by the learned counsel for the petitioner that the III Additional District Judge has acted in exercise of jurisdiction illegally and with material irregularity by totally relying on the report of the Commissioner and ignoring the documentary evidence filed by the petitioner while coming to the conclusion that the respondent herein is in possession and enjoyment of the property.

So the point that arises for consideration is whether the III Additional Judge, Chittoor has exercised the jurisdiction illegally and with material irregularity and whether the order passed by the learned Additional Judge if allowed to stand would occasion failure of justice or cause irreparable loss as would justify interference in the revision.

During the pendency of the appeal the respondent-plaintiff filed an application for appointment of Commissioner to inspect the suit land and to make note of the observations which would enable the court to come to the conclusion as regards possession and enjoyment of the property. That petition was allowed and a Commissioner was appointed. The Commissioner after issuing notice to both the parties inspected the land and submitted his report. Basing on the observations made by the Commissioner at the time of inspection the learned Judge came to the conclusion that the respondent-plaintiff is in possession and enjoyment of the property and consequently granted relief of injunction. It is now contended by the petitioner that the appellate court erred in appointing the Commissioner for purpose of procuring evidence and also erred in relying on the report of the Commissioner to come to the conclusion. In support of this contention he relied on decisions in Brij Lal v. Ram Pratap, AIR 1982 Del. 149 and in The Institution of Engineers (India) and Another Vs. Bishnu Pada Bag and Another, .

It is true that it may not be proper for the court to appoint a Commissioner for collection of evidence. But, in this instant case it cannot be said that the Commissioner was appointed for such purpose. He was only required to inspect the land and make note of the observations made by him pertaining to physical features on the land and on the basis of those observations the learned Additional Judge has decided the appeal. The learned Additional Judge has observed in the order that the documents filed by the petitioner and the respondent do support to their respective cases. The respondent has also filed cist receipts showing payment of revenue and he also filed documents to show that patta was granted to him in respect of the disputed land item. No. 1 of the plaint schedule. Similarly the petitioner herein has filed documents which would probablise his contention that he is the owner and in possessor of the disputed land. So under the circumstances the learned Additional Judge rightly felt that it is unsafe to rely on these documents at this stage for grant of injunction. Therefore he rightly felt that a report of commissioner may enable him to decide the appeal in a just and proper manner and appointed a Commissioner. The Commissioner filed his report. The land in dispute measures about Acs. 3.15 cents and it is situated in S.No. 244/3B. The respondent herein had contended that he had raised ground-nut crop in a portion of this land and that it was ripe for harvest. The Commissioner inspected the land in the presence of both the advocates and also the Revenue Inspector. The Revenue Inspector got the land measured and determined the boundaries of the disputed land. He found that in a portion of the disputed land some standing ground-nut crop was there and it was ripe for harvest. He also found that in a portion of the land paddy crop had been raised and that it was harvested. To the West and South of this and there was the land of the respondent. In that land there was a well belonging to the respondent and he noticed irrigation channel from that well to the disputed land for purpose of irrigating the same. Except that, there is no other source of irrigation. As there was irrigated ground-nut crop in the suit land the appellate court came to the conclusion that the disputed land must have been in possession and enjoyment of the respondent-plaintiff. In the objections filed before the Commissioner the petitioner herein has stated that there is some other land belonging to him and there is a well in that land and that the disputed land could also be irrigated with the water from that well. If that is true the petitioner would have pointed out the same to the Commissioner at the time of inspection. The report shows that except the channel from the well situated in the land of the respondent there is no other channel through which the disputed land could be irrigated. So under the circumstances I find that the learned Addl. Judge has rightly come to the conclusion regarding the possession and enjoyment of the land. "Further, it cannot be said that if this order is allowed to stand it would occasion failure of justice or cause irreparable injury to the petitioner against whom the order is passed. As the learned Additional Judge found that it is not safe to rely on documentary evidence which is inconsistent he had no other alternate except to place reliance on the report of the Commissioner, I therefore, find that it cannot be said that the learned III Additional Judge has exercised the jurisdiction illegally or with material irregularity in coming to the conclusion so as to justify interference with his judgment in the revision". I, therefore, find that the revision is liable to be dismissed and it is accordingly dismissed.

It is represented that the suit was originally instituted in the court of Subordinate Judge Tirupathi, later is transferred to sub-court Puttur and renumbered as Os.No. 139/90. This Subordinate Judge shall dispose of the suit within six months from today.