CRP/3885/2012 of G. Alivelamma Vs Anif Sab on 30 December 2013

ORDER:

THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTICivil Revision Petition No.3885 of 2012

This Civil Revision Petition by the unsuccessful plaintiff under Article227 of the Constitution of India is directed against the order dated the 17[th]day of April 2012 of the learned Junior Civil Judge, Hindupur made in I.A. 315of 2012 in O.S. 60 of 2006 filed under Order XVI Rule 9 of the Code of CivilProcedure requesting to appoint an advocate Commissioner to ascertain,with the help of a surveyor and with reference to FMB sketch and streetsketch, whether the schedule property in the said suit is in survey number398–4 as contended by the plaintiff or in survey number 400–1 as contendedby the defendants.

2. I have heard the submissions of the learned counsel for both the sides. Ihave perused the material record including the impugned order.

3. The plaintiff had filed the suit for a perpetual injunction in respect of theplaint schedule property showing that it is existing in Survey Number 398–4.The plaintiff had also furnished the measurements in feet on all the four sidesof the said property. While so, the Zamiya Masjid filed another suit inO.S.No.54 of 2009 against the plaintiff herein. The said second suit was alsofor a perpetual injunction in respect of the same extent of property, however,showing that the said property is in existence in survey number 400–1. Asboth the suits are filed respectively for grant of perpetual injunctionsimplicitor, the trial Court had clubbed both the suits for conducting joint trial;and, in fact, common evidence was recorded in O.S.No.60 of 2006. The suitsare said to have been posted for hearing arguments. It appears that after thearguments were heard, in part, the plaintiff had filed the instant application forappointment of an Advocate-Commissioner. The said petition was resisted bythe Muthavalli of Zamia Maszid, who was one of the defendants in the said suit. It is inter alia contended by the said defendant that in a suit for aperpetual injunction simplicitor the burden is on the plaintiff to prove that theplaintiff is in possession of the property by adducing necessary oral anddocumentary evidence and that seeking the appointment of a Commissionerto ascertain in which survey number the plaint schedule property is situated isoutside the scope and purview of the suit. The trial court had dismissed theapplication of the plaintiff holding that the suit is at the stage of argumentsand that an application for reopening the matter is not filed and that theburden is on the plaintiff to establish possession as well as the existence ofthe property in Survey Number 398–4 and that an advocate Commissionercannot be appointed to gather evidence. Aggrieved of the said orders of thetrial court, the unsuccessful plaintiff in OS 60 of 2006 had filed the presentCivil Revision Petition.”

4. Both the sides had reiterated their respective contentions. Now, what isto be noted is that there are two suits for perpetual injunction in respect of thesame extent of property. In the first suit of the present plaintiff, the saidproperty is shown to be in existence in Survey Number 398–4. In the 2[nd] suit,the schedule property is shown to be in existence in Survey Number 400–1.In the first suit, the Muthavalli of the Maszid is one of the defendants. The 2[nd]suit is filed by the Masjid against the plaintiff in the first suit. Both the partiesadduced evidence during the course of the common trial that was conductedafter clubbing both the suits. As per the contentions of the plaintiff in thepresent suit, if ultimately, the property being claimed by her in OS 60 of 2006is shown to be in existence in Survey Number 398–4, she would succeed inthe said suit as the defendants are claiming the property in a different surveynumber. Similarly, as per the contentions of the Muthavalli of the Masjid, ifultimately the property being claimed by the Masjid is shown to be inexistence in Survey No.400–1, the Masjid is entitled to succeed in its suit.There is a possibility of both the claims being correct, if ultimately it is found that the properties being respectively claimed in both the suits are found to bein existence in the two different Survey Numbers viz., 398–4 and 400– 1. Further, if it is ultimately found on localisation that the properties beingclaimed in the two suits are one and the same then the survey number of theproperty would clinch the issue and would give a quietus to the controversyonce and for all. Thus, to rule out the various possibilities that can bevisualized, and to remove all doubts and to leave no aspect to be in doubtand to narrow down the controversy between the parties in the two suits, inthe well considered view of this court, the best course to be adopted in thematter would be to appoint an advocate Commissioner to ascertain thefollowing vitally important aspects: (i) Whether the properties, which are thesubject matters of the two suits, are two different and distinct properties, and,if so, what are the respective survey numbers of the said properties; and (ii)Whether the properties, which are the subject matters of the two suits, are oneand the same property, and, if so, what is the survey number of the saidproperty. When there is a prospect of getting the best possible evidence byadopting the above course, it is just, fair, appropriate and obligatory toexercise the discretion having regard to the peculiar facts of the cases.Instead of making an endeavour to decide the issue in regard to actual surveynumber/s of the property/properties by merely referring to direct/oral evidenceand documentary evidence, it is in the interests of justice to explore one morepossibility and secure evidence by appointing an advocate Commissioner forlocalization of the subject properties involved in the two suits, with referenceto the survey number/s. The question to be posed is – ‘whether theinformation/legal evidence that may be secured by the appointment of anadvocate commissioner would also throw some light on the core issues andwould be helpful to the Court in arriving at a just decision in the matter?. And,if the answer to the said question is in the affirmative, then the request forappointment of an advocate-commissioner shall be granted. Viewed thus,this Court finds that in the light of the facts peculiar to the two suits and to give a quietus to the controversy once and for all and to prevent multiplicity ofproceedings, it is just and fair to consider the request of the plaintiff forappointment of an advocate Commissioner for the desired purpose.Therefore, the impugned order, which is made purely on technicalities andwithout having regard to the facts peculiar to the cases, brooks interferenceand deserves to be set aside.

5. In the result, the Civil Revision Petition is allowed without costs andthe impugned order is set aside and the interlocutory application in IA 315 of2012 in OS 60 of 2006 on the file of the learned Junior Civil Judge, Hindupuris hereby allowed. The trial Court on receipt of a copy of these orders, shallpursuant to the instant orders, take up the said interlocutory application andappoint, as per practice and procedure, an Advocate Commissioner to makea local inspection of the schedule properties in the two suits and to locate thesame on land with reference to the respective boundaries mentioned in theschedules of the plaints and to ascertain the aspects viz., (i) Whether theproperties, which are the subject matters of the two suits, are two different anddistinct properties, and, if so, what are the respective survey numbers of thesaid properties; and (ii) Whether the properties, which are the subjectmatters of the two suits, are one and the same property, and, if so, what is thesurvey number of the said property. It is made clear that the Commissioner soappointed shall take the assistance of a qualified surveyor and execute thework by having necessary reference to the records like FMBs and streetsketches and/or any other relevant record and file a report after answering thework memoranda, if any, furnished by both the parties. The miscellaneouspetitions, if any, pending in this revision shall stand dismissed.

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30[th] DECEMBER 2013RAR