Order XXVI Rule 9 of the Code of Civil Procedure = suit for declaration of title and recovery of possession of the plaint schedule property from the respondents.for appointment of an Advocate Commissioner to localize the survey numbers 52, 53 and 54 on land along with sub- divisions therein as shown in the plaint plan, and also to localize the extent of Acs.3.50 cents in Sy. No.52/1-B1 on land, with the assistance of District Surveyor and total station instrument, and with the help of municipal survey records and other documents produced by them into the Court and the documents produced by the defendants, and also to arrange for taking necessary photographs and videos.= Under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, the main purpose of appointing an Advocate Commissioner is to elucidate any matter in dispute. It does not appear from the pleadings of the parties that the identity of the property is in dispute and therefore the question of localizing the property does not arise. It is therefore wholly unnecessary for the petitioner to seek appointment of an Advocate Commissioner. Being the plaintiff, the burden is on him to prove his case by producing required evidence and he cannot seek to rely upon the help of an Advocate Commissioner for this purpose. Unless he has material in his possession to show that he has title over the suit schedule property, he should not have filed the suit at all. If, for any reason, the petitioner wants to establish the identity of the property with reference to the boundaries mentioned in the documents on ground, he is always entitled to seek survey of the property by approaching the survey officials on his own, and produce the survey reports and examine the surveyor concerned as his witness. Instead of following this procedure, the petitioner appeared to have devised a shortcut method of filing the application for appointment of an Advocate Commissioner. This, in my opinion, surely is not the purpose for which the Advocate Commissioner is appointed. In the light of the above discussion, I do not find any reason to interfere with the order of the lower Court and the civil revision petition is accordingly dismissed.
THE HONOURABLE SRI JUSTICE C.V. NAGARJUNA REDDY
Civil Revision Petition No.2651 of 2016
10-06-2016
K.Sambasiva Reddy Petitioner
Challa Rama Rao Reddy and others Respondents
Counsel for the Petitioner: Mr. S. Sridhar
Counsel for respondent Nos.1 and 2: Mr. S.V.R. Subrahmanyam
Counsel for respondent Nos.3 to 56: -
<GIST :
>HEAD NOTE:
?CITATIONS :
THE HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY
CIVIL REVISION PETITION NO.2651 OF 2016
DATED:10-06-2016
THE COURT MADE THE FOLLOWING:
ORDER:
This civil revision petition is filed against order dt.21.4.2016 in I.A.
No.1501 of 2015 in O.S. No.107 of 2013, on the file of the II Additional
District Judge, Visakhapatnam.
I have heard Mr. S. Sridhar, learned counsel for the petitioner, and
Mr. S.V.R. Subrahmanyam, learned counsel for respondent Nos.1 and 2,
and perused the record.
The petitioner filed the above-mentioned suit for declaration of title
and recovery of possession of the plaint schedule property from the
respondents. After completion of the pleadings, the petitioner has filed
I.A. No.1501 of 2015 for appointment of an Advocate Commissioner to
localize the survey numbers 52, 53 and 54 on land along with sub-
divisions therein as shown in the plaint plan, and also to localize the
extent of Acs.3.50 cents in Sy. No.52/1-B1 on land, with the assistance of
District Surveyor and total station instrument, and with the help of
municipal survey records and other documents produced by them into the
Court and the documents produced by the defendants, and also to
arrange for taking necessary photographs and videos.
In the affidavit filed in support of the said application, the petitioner
stated that in order to prove his title, he has produced Will dt.10.2.1987,
subsequent Will dt.6.5.2010, patta dt.6.1.1941 and also rough plan. He
has further averred that the respondents in order to prove their rights
over an extent of Acs.3.50 cents in Sy.No.52/1 B1, produced ground rent
patta proceedings in the court. That physical inspection of plaint schedule
property to note the stage of construction in the schedule property by an
Advocate Commissioner is necessary because the respondents are trying
to alter the physical features of the property and are proceeding with the
constructions in haste in spite of the pendency of the suit and the
injunction application. The petitioner further averred that the localization
of the property with the assistance of District Surveyor with the help of
municipal survey records and documents will also enable the Court to
appreciate the rival contentions of the parties and to come to a correct
conclusion. As the said application was dismissed by the lower Court, the
petitioner has filed this civil revision petition.
Under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, the
main purpose of appointing an Advocate Commissioner is to elucidate any
matter in dispute. It does not appear from the pleadings of the parties
that the identity of the property is in dispute and therefore the question of
localizing the property does not arise. It is therefore wholly unnecessary
for the petitioner to seek appointment of an Advocate Commissioner.
Being the plaintiff, the burden is on him to prove his case by producing
required evidence and he cannot seek to rely upon the help of an
Advocate Commissioner for this purpose. Unless he has material in his
possession to show that he has title over the suit schedule property, he
should not have filed the suit at all. If, for any reason, the petitioner
wants to establish the identity of the property with reference to the
boundaries mentioned in the documents on ground, he is always entitled
to seek survey of the property by approaching the survey officials on his
own, and produce the survey reports and examine the surveyor concerned
as his witness. Instead of following this procedure, the petitioner
appeared to have devised a shortcut method of filing the application for
appointment of an Advocate Commissioner. This, in my opinion, surely is
not the purpose for which the Advocate Commissioner is appointed.
In the light of the above discussion, I do not find any reason to
interfere with the order of the lower Court and the civil revision petition is
accordingly dismissed.
As a sequel to dismissal of the civil revision petition, C.R.P.M.P.
No.3379 of 2016 shall stand disposed of as infructuous.
______________________
C.V. NAGARJUNA REDDY, J
10-06-2016
Civil Revision Petition No.2651 of 2016
10-06-2016
K.Sambasiva Reddy Petitioner
Challa Rama Rao Reddy and others Respondents
Counsel for the Petitioner: Mr. S. Sridhar
Counsel for respondent Nos.1 and 2: Mr. S.V.R. Subrahmanyam
Counsel for respondent Nos.3 to 56: -
<GIST :
>HEAD NOTE:
?CITATIONS :
THE HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY
CIVIL REVISION PETITION NO.2651 OF 2016
DATED:10-06-2016
THE COURT MADE THE FOLLOWING:
ORDER:
This civil revision petition is filed against order dt.21.4.2016 in I.A.
No.1501 of 2015 in O.S. No.107 of 2013, on the file of the II Additional
District Judge, Visakhapatnam.
I have heard Mr. S. Sridhar, learned counsel for the petitioner, and
Mr. S.V.R. Subrahmanyam, learned counsel for respondent Nos.1 and 2,
and perused the record.
The petitioner filed the above-mentioned suit for declaration of title
and recovery of possession of the plaint schedule property from the
respondents. After completion of the pleadings, the petitioner has filed
I.A. No.1501 of 2015 for appointment of an Advocate Commissioner to
localize the survey numbers 52, 53 and 54 on land along with sub-
divisions therein as shown in the plaint plan, and also to localize the
extent of Acs.3.50 cents in Sy. No.52/1-B1 on land, with the assistance of
District Surveyor and total station instrument, and with the help of
municipal survey records and other documents produced by them into the
Court and the documents produced by the defendants, and also to
arrange for taking necessary photographs and videos.
In the affidavit filed in support of the said application, the petitioner
stated that in order to prove his title, he has produced Will dt.10.2.1987,
subsequent Will dt.6.5.2010, patta dt.6.1.1941 and also rough plan. He
has further averred that the respondents in order to prove their rights
over an extent of Acs.3.50 cents in Sy.No.52/1 B1, produced ground rent
patta proceedings in the court. That physical inspection of plaint schedule
property to note the stage of construction in the schedule property by an
Advocate Commissioner is necessary because the respondents are trying
to alter the physical features of the property and are proceeding with the
constructions in haste in spite of the pendency of the suit and the
injunction application. The petitioner further averred that the localization
of the property with the assistance of District Surveyor with the help of
municipal survey records and documents will also enable the Court to
appreciate the rival contentions of the parties and to come to a correct
conclusion. As the said application was dismissed by the lower Court, the
petitioner has filed this civil revision petition.
Under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, the
main purpose of appointing an Advocate Commissioner is to elucidate any
matter in dispute. It does not appear from the pleadings of the parties
that the identity of the property is in dispute and therefore the question of
localizing the property does not arise. It is therefore wholly unnecessary
for the petitioner to seek appointment of an Advocate Commissioner.
Being the plaintiff, the burden is on him to prove his case by producing
required evidence and he cannot seek to rely upon the help of an
Advocate Commissioner for this purpose. Unless he has material in his
possession to show that he has title over the suit schedule property, he
should not have filed the suit at all. If, for any reason, the petitioner
wants to establish the identity of the property with reference to the
boundaries mentioned in the documents on ground, he is always entitled
to seek survey of the property by approaching the survey officials on his
own, and produce the survey reports and examine the surveyor concerned
as his witness. Instead of following this procedure, the petitioner
appeared to have devised a shortcut method of filing the application for
appointment of an Advocate Commissioner. This, in my opinion, surely is
not the purpose for which the Advocate Commissioner is appointed.
In the light of the above discussion, I do not find any reason to
interfere with the order of the lower Court and the civil revision petition is
accordingly dismissed.
As a sequel to dismissal of the civil revision petition, C.R.P.M.P.
No.3379 of 2016 shall stand disposed of as infructuous.
______________________
C.V. NAGARJUNA REDDY, J
10-06-2016
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