High Court · 2011

defendants in the suit and appointed Advocate Commissioner to make local investigation and to report whether the fixtures alleged by the defendants in the suit land, are existing?

4. The learned counsel appearing for the petitioners/plaintiffs contended that the suit is filed by perpetual injunction and the question that falls for consideration is whether the plaintiffs were in possession of the suit schedule property as on the date of filing of the suit and whether the plaintiffs are entitled for injunction as prayed for and in the said suit, making local investigation to find out whether the fixtures alleged by the defendants exist or not, would be hardly of any relevance and the purpose of filing application for appointment of Advocate Commissioner, is only to gather evidence and the same is not permissible under law. In support of this contention, he relied on the judgment of a learned single Judge of this court reported in ARREDIA RAM REDDY v. ARREDIA ALIVELAMMA[1]. He contended that though this decision was relied on before the court below, the court below erroneously held that the same is not applicable. He further contended that the suit is at the stage of filing of the written statement and at the threshold itself appointment of Advocate Commissioner is not permissible. In support of this contention, he relied on the judgment of a learned single Judge of this court reported in G.HANUMANTHA RAO @ ANJANEYULU v. BATTIGIRI RAMULU[2]. With these submissions, he sought to set aside the impugned order.

5. On the other hand, the learned counsel appearing for the respondents/defendants contended that depending upon the facts and necessity, the appointment of Advocate Commissioner can be made in a suit for permanent injunction and even in the judgment relied on by the counsel for the petitioner (1 supra), the same proposition is laid. Supporting the impugned order and relying on the judgments of this court reported in VARALA RAMACHANDRA REDDY v. MEKALA YADI REDDY[3], YEEA AYYANNA v. H.MARTHAMMA[4] and SALLA ESWARAMMA v. C. SUBBA REDDY[5], he sought to dismiss the revision petition.

6. From the material available on record, it could be seen that the suit is filed for perpetual injunction and the case of the petitioners is that they are the owners of the suit schedule A and B properties and the same was purchased under registered sale deed and they are in possession of the suit land and that the respondents who are the adjacent land owner, who have no right or title over the suit schedule property, are interfering with their possession and hence filed the suit for injunction. On the other hand, the case of the respondents is that they are running a school in the name of Challenger High School at Bhagathnagar, Karimnagar, which is located in the building bearing door no.8-3-132/2, which is towards northern side of the plaint B schedule land, which is attached to the said building on the south of the said building and the plaintiffs falsely described the plaint schedule B land as open land and that the plaint B schedule land is open place of

215.74 sq. yards and 53.23 sq. yards as shown in the plaint map and it is in the possession of the school since 2005 and that they constructed compound wall for the said school in the year 2005 and also fixed gate and that there are generator and other fixtures and that the plaintiffs obtained ex pate injunction and are trying to remove the gate.

7. It is to be noticed that it is the suit filed by the plaintiffs seeking perpetual injunction and the burden is on the plaintiffs to prove their possession. Further as contended by the counsel for the petitioners/plaintiffs, in a suit for permanent injunction the questions that fall for consideration are whether the plaintiffs were in possession of the suit schedule property, as on the date of filing of the suit and whether they are entitled for permanent injunction. The question of the local investigation, to find out whether the alleged fixtures are existing on the suit land or not, will be hardly of any importance. The case of the plaintiffs is that they are in possession of the suit schedule property and on the other hand, the case of the defendants is that they are in possession of the property and that they are running school and have constructed compound wall and also made fixture in the said land. As per the decisions relied on by the counsel for the respondents, an Advocate Commissioner can be appointed in a suit for permanent injunction for local investigation. But at the same time, it would depend upon the facts and circumstances of each case. In the present case, as stated above, there is any amount of dispute with regard to possession and it forms the paramount consideration to grant the relief in the suit. If the Advocate Commissioner is appointed for location investigation to find out whether the fixtures are there, as alleged by the defendants, it amounts to collecting evidence, in support of the case of the defendants, which, in fact, the court has to decide based on the facts and circumstances and material evidence to be made available on record and the said job cannot be assigned to an Advocate Commissioner. A learned single Judge of this court in the decision reported in Arredla Ram Reddy (1 supra) held as under: “6. It is true that appointment of Commissioner under Order 26 C.P.C., is not confined to any particular circumstance. Depending on the necessity in a suit, Commissioners can be appointed, even to note down the physical features. This, however would depend on the nature of relief claimed in the suit. When the physical features of the suit schedule property are hardly of any relevance, in a suit for permanent injunction, the necessity to appoint a Commissioner does not arise. The resultant report is prone to be used as a material, to support the plea of possession etc. Such a course of action is impermissible in law.”

8. In BONGU RAMULU AND ANOTHER v. GUDUR NARENDER REDDY[6], a learned single Judge of this court held as under: “In a suit for perpetual injunction, the court has to adjudicate as to who is in actual possession of the suit property as on the date of institution of the suit on the basis of oral and documentary evidence adduced by the parties and the said function cannot be entrusted to the Advocate Commissioner.”

9. It is also to be noticed that ex parte injunction was granted by the court and the suit is at the stage of filing written statement and the trial has not yet commenced and at the threshold itself, appointment of the Advocate Commissioner to make local investigation and to file report, would amount to gathering evidence and the same has to be discouraged. A learned single Judge of this court in GANGAVARAPU HANUMANTHA RAO’s (2 supra) in similar facts and circumstances, in a suit for perpetual injunction and where temporary injunction was in force and the trial court appointed Advocate Commissioner at the threshold, held as under: “5. Filing of applications for appointment of Commissioner under Order 26 Rule 9 C.P.C., in the suits for perpetual injunction, cannot be treated as a matter of routine. The contentions of the parties as to the possession over the suit schedule property, need to be appreciated, with reference to the evidence, that may be adduced, be it at the interlocutory or the final stage. The appointment of Commissioner, at the initial states, is prone to be treated as step to gather evidence. Therefore, filing of applications under Order 26 Rule 9 C.P.C. in the suits for injunction, at the initial stages.” the Courts discourage

10. In view of the above judgments, I am of the considered view that the order of the trial court in appointing Advocate Commissioner to make local investigation to note the fixtures said to have been fixed by the defendants, at the at the threshold of the suit, cannot be sustained and impugned order is set aside and the revision is allowed. No costs. AVS ------------------------------------- 01—04—2011 [1] 2005(1) ALT 28 [2] 2008(1) ALD 466 [3] 2010 (4) ALD 198 [4] 2009(1) ALD 548 [5] 2009(2) ALD 160 [6] 1998(3) ALD 657