Andhra Pradesh High Court – Amravati
Kalluru Narayana Reddy vs Kalluru Chenchugandla Jaya Chandra … on 7 April, 2025
APHC010248692019
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
MONDAY ,THE SEVENTH DAY OF APRIL
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
CIVIL REVISION PETITION NO: 2318/2019
Between:
Kalluru Narayana Reddy ...PETITIONER
AND
Kalluru Chenchugandla Jaya Chandra ...RESPONDENT(S)
Reddy and Others
Counsel for the Petitioner:
1. JAYANTI S C SEKHAR
Counsel for the Respondent(S):
1. VENKATA REDDY CHITTEM
The Court made the following:
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Dr. VRKS, J
C.R.P.No.2318 of 2019
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.2318 of 2019
ORDER:
Defendant No.1 filed this civil revision petition under Article
227 of the Constitution of India assailing the order dated
26.07.2019 of the learned III Additional Junior Civil Judge,
Kadapa in I.A.No.1458 of 2018 in O.S.No.752 of 2017.
2. Heard arguments of Sri Jayanti S.C. Sekhar, the learned
counsel for revision petitioner and Sri Venkata Reddy Chittem,
the learned counsel for respondent No.1.
3. O.S.No.752 of 2017 is a suit filed for declaration of title and
for permanent injunction in respect of the suit schedule property.
Plaint refers to an unregistered Will dated 14.12.1948 executed
by Sri K.Chinnaiah in favour of the father of the plaintiff. That the
Will came into effect on the death of the testator. Thereafter on
the death of the father, plaintiff succeeded the property. The
other averments in the plaint are to the effect that the plaintiff has
been in possession and enjoyment of this property as he has
been keeping manure heaps in it and tying his cattle and he
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C.R.P.No.2318 of 2019
mentions about three other people who also keep their cattle
manure in the suit schedule property. It is further averred that
there is also a choultry in the property. That there is a tamarind
tree in existence in the property. Refuting the claims, defendant
No.1 in the suit filed his written statement stating that the property
has been in his possession and he has been cultivating the crops
in it. That the suit was filed only with a view to grab the property
unlawfully.
4. The issues in the suit were not yet settled. It was at that
stage the plaintiff filed I.A.No.1458 of 2018 in O.S.No.752 of 2017
under Order XXVI Rule 9 C.P.C. praying for appointment of an
advocate commissioner to note down the physical features of the
property and also to note down the nature of the property as to
whether it is agricultural land or non-agricultural land and prayed
the Court to grant assistance of Mandal Surveyor to the advocate
commissioner. Defendant No.1 in the suit filed his counter
contending that the prayer made in the petition cannot be
maintained and that the nature of the property as to whether it is
agricultural land or non-agricultural land is to be proved by
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C.R.P.No.2318 of 2019
necessary documents such as revenue records. The petition
cannot be allowed since it intended to collect evidence to prove
the disputed possession claimed in the plaint. That, it is not a
case where any encroachment is alleged, or any damage is done
to the property so as to necessitate appointment of an advocate
commissioner. The essential dispute is about title over the
property and therefore, the petition for an advocate
commissioner’s appointment does not merit for consideration.
5. The learned trial Court after considering the pleadings in
the suit and the petition and the counter filed in the interlocutory
application and after considering the rival submissions and the
rulings cited before it allowed the petition stating that in order to
elucidate the matter in controversy it felt that it was appropriate to
appoint an advocate commissioner. It passed the order in the
following terms:
“In the result, this petition is allowed by appointing
Sri K.Bhuvana Ekadasi Reddy, Advocate, Kadapa as Court
Commissioner to note down the physical features of the
petition schedule property. His remuneration is fixed at
Rs.4,000/- directly payable by the petitioner to the Court
Commissioner. The Commissioner shall give notice to the
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C.R.P.No.2318 of 2019parties before he proceeded to execute warrant and shall
receive work memos and shall comply the same as for as
practicable. The Commissioner is directed to follow the
procedure contemplated under Order 26 of C.P.C
scrupulously. The warrant shall be returnable with rough
sketch and report on or before 13-8-2019 on payment of
process. For report, call on 13-8-2019.”
6. Aggrieved by it, defendant No.1 preferred this revision.
7. Learned counsel for the petitioner contended that the suit
being one for declaration of title the same must be decided only
based on the evidence produced before the Court by the parties
and there was no legal need to appoint an advocate
commissioner to note down the physical features of the property.
Under the guise of noting down the physical features, the plaintiff
intended to collect evidence which is impermissible under law. In
this regard, the learned counsel for revision petitioner cited the
following rulings:
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Dr. VRKS, J
C.R.P.No.2318 of 2019Thalla Sulochana v. Thalla Isaac1. That was a suit for
declaration of title and permanent injunction. An application for
appointment of an advocate commissioner to note down the
physical features of the property in dispute was filed. After
recording its reasons, the trial Court dismissed it. In view of the
facts available in that litigation, this Court recorded that the
essence of the dispute revolved around execution of a gift deed
and acting upon the gift and that there was no dispute about the
identity or boundaries of the property. It was in such
circumstances this Court observed that dismissal of petition for
appointment of advocate commissioner was rightly done by the
Court below.
Chandrasekaran v. V.Doss Naidu2. There the question of
possession of immovable property was in dispute. In an earlier
litigation certain facts were recorded, and certain rights were
decided. Considering those aspects a learned Judge of the
Madras High Court took the view that in such fact situation
1
2012 (3) ALD 384 (AP)
2
2005 LawSuit(Mad) 756
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C.R.P.No.2318 of 2019appointment of an advocate commissioner to note down the
physical features could not be maintained.
Santha Satheesh v. H J Walter3. Considering the facts
available in that suit, a learned Judge of the Madras High Court
took the view that the application for appointment of an advocate
commissioner was to collect evidence which could not be
countenanced and dismissed the prayer.
8. As against it, the learned counsel for respondent
No.1/plaintiff submits that the impugned order is in accordance
with law and facts and requires no interference. Learned counsel
cited N.Savitramma v. B.Changa Reddy4. That was a suit for
declaration of title and for permanent injunction. An application
for appointment of an advocate commissioner was filed before
settlement of issues. In the light of facts and circumstances a
learned Judge of this Court held as follows:
“It cannot be said that no Commissioner could be
appointed before the issues are framed or the evidence is3
2012 LawSuit(Mad) 2244
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Dr. VRKS, J
C.R.P.No.2318 of 2019led. Whenever such physical features on the land or other
property are required to be noted, it becomes necessary
for the Court to appoint a Commissioner to note these
features. The plaintiff can certainly take the assistance of
the Court to have the physical features of the property
noted by an Officer of the Court, namely, an Advocate
Commissioner, before the said features are obliterated
either by the opposite party or by the vagaries of nature. If
the physical features of the land as on the date of the suit
are allowed to be obliterated and a Commissioner is to be
appointed several years after filing of the suit or at the end
of trial or during trial, the very object of getting the best
evidence before the Court would be frustrated. That would
enable the defendants in the suit to take advantage of their
might and alter the physical features of the land and also
protract the trial till such time that those features were
obliterated by lapse of time or by the defendant’s action.
The evidence of a Commissioner appointed at the earlier
stages of the suit to note the physical features would
certainly go a long way in helping the Court to arrive at the
truth.”
9. Learned counsel for respondent No.1 also cited
K.Dayanand v. P.Sampath Kumar5. After a detailed analysis of
the precedent, a learned Judge of this Court dealing with a
4
1988 (1) A.L.T. 353 (AP)
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C.R.P.No.2318 of 2019
petition for appointment of an advocate commissioner to note
down the physical features in a suit for permanent injunction held
that the dispute refers to the nature of the user of the disputed
property and appointment of an advocate commissioner in such
circumstances does not amount to collecting evidence and that it
is always advisable to allow a party to make use of various
provisions of law for appropriate adjudication of the real dispute
between the parties.
10. The point that falls for consideration in this revision is:
“Whether the impugned order is erroneous in the
given facts and circumstances of the case?”
POINT:
11. It is in those cases where the trial Courts exercised
jurisdiction that was not vested in them by law or when they failed
to exercise a jurisdiction so vested in them or when they acted in
exercise of jurisdiction illegally or with material irregularity, this
5
2015 (2) ALD 319 (AP)
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C.R.P.No.2318 of 2019
Court exercises its revisional jurisdiction. Order XXVI Rule 9
C.P.C. confers discretion on the trial Court to appoint or not to
appoint a commissioner to make local investigation. They could
exercise such discretion only after they find a prima facie case
and when it holds the opinion that a local investigation could be
required or could be said to be proper for the purpose of
elucidating any matter in dispute. The suit before the Court below
has been for adjudication of title that was in dispute and the
possession that was in dispute. Both the aspects are required to
be decided based on the evidence placed by both parties before
the Court below.
12. The rival pleadings indicated about the nature of the things
available on the disputed property. One suggested that there has
been a structure on it and the premises have been used for
keeping manure. The other has suggested that there are only
crops on the land. When the rival evidence is placed before the
trial Court, it has to appreciate the evidence. While doing so
when the trial Court felt that an accurate description of the
physical features of the property would enable it to appreciate the
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C.R.P.No.2318 of 2019
evidence on record then the same cannot be said amounting to
collection of any evidence. While the petition for advocate
commissioner filed required assistance of a Mandal Surveyor and
writing of report about the nature of the land as to whether it is
agricultural land or non-agricultural land, the trial Court did not
grant those parts of the relief.
13. As could be seen from the operative portion of the order of
the Court below which is extracted above, it merely directed for
recording of physical features and nothing more. Thus, the trial
Court was very circumspect and was alive to the fact that the
process of the Court should never be used for collection of
evidence. This Court finds no erroneous exercise of discretion by
the Court below. There is no merit in this revision. The point is
answered against the revision petitioner.
14. In the result, this Civil Revision Petition is dismissed. The
order dated 26.07.2019 of the learned III Additional Junior Civil
Judge, Kadapa in I.A.No.1458 of 2018 in O.S.No.752 of 2017 is
confirmed. There shall be no order as to costs.
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C.R.P.No.2318 of 2019
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 07.04.2025
Ivd
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Dr. VRKS, J
C.R.P.No.2318 of 2019
THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.2318 of 2019
Date: 07.04.2025
Ivd