SABBELLA LAKSHMI Vs. MOHAMMAD SUBHAM ALI

JUDGEMENT

(1.) This civil revision petition, under Article 227 of the Constitution of India, is directed against the order, dtd. 18/3/2020, of the learned II Additional District Judge, Eluru, West Godavari District, dismissing I.A.No.244 of 2020 in O.S.No.84 of 2014 filed under Order XXVI Rule 9 read with Sec. 151 CPC seeking to appoint an Advocate Commissioner to measure the property of the plaintiff and defendants 1 and 5 with reference to the title deeds of the parties and FMB so as to ascertain and locate the extent of the site of the petitioner wrongfully encroached by the defendants.

(2.) Heard Sri C.Venkaiah, learned counsel for the revision petitioner/plaintiff and Sri Kambampati Ramesh Babu, learned counsel for the respondent/defendant No.1 and Sri Paturi Srinivas Chowdary, learned counsel appearing for the 5th respondent. Though notices were served on respondent Nos.2 to 4, they have not appeared.

(3.) The facts, in brief, are as follows: The revision petitioner/plaintiff filed the present suit for recovery of possession of schedule land of an extent of Ac.0.15 cents and for mandatory injunction to direct the defendants 1 to 5 to restore the irrigation bodi and its bunds in the schedule land from South to North and for other reliefs. The defendants filed written statement. The suit is coming up for trial. The defendants 1 to 5 wrongfully encroached the site covered by the bodi, its eastern bund and also the land of the plaintiff illegally. Hence, the plaintiff filed the suit for recovery of possession of the land wrongfully encroached by the defendants 1 to 5, which is approximately Ac.0.15 cents. The defendants not only encroached the schedule land but also closed the irrigation bodi running in the schedule land. Hence, the relief of mandatory injunction was also sought. The plaintiff also filed an application in I.A.No.875 of 2016 seeking appointment of an advocate commissioner. The trial Court allowed the said petition and appointed an advocate commissioner. The commissioner visited the suit schedule land, got measured the property in occupation of the petitioner and filed his report without measuring the properties of the defendants and also the land of the petitioner in R.S.No.747/2 of Eluru Block, Venkatapuram Panchayat. The commissioner was also examined as CW1. He was cross-examined by the counsels for the plainitff and the 5th defendant. (b) According to the revision petitioner/plaintiff, the commissioner did not execute the warrant as per the directions of the trial Court. No survey number or title deeds were referred. The commissioner did not ascertain and measure the total extent of the sites in R.S.No.747 and 747/2. He did not collect the lay out plan in respect of the land of the defendants. Further, the report and sketch filed by the advocate commissioner do not disclose the actual location of the schedule property. In fact, the plaint schedule property is from South to North and on the East of the plaint schedule property, the land of the plaintiff is located and on the West of the schedule property, the sites of the defendants are located. Therefore, the purpose of appointment of advocate commissioner is not at all served and the report of the commissioner is no way useful to decide the case on merits. Without measuring the entire properties of the parties, it is not possible to locate the extent of the land encroached. If the trial Court proceeds on the basis of the said report of the commissioner, which is improper and incomplete, the plaintiff would be deprived of his valuable site of an extent of Ac.0.15 cents worth not less than Rs.75,00,000.00. It is, therefore, just and necessary to appoint another advocate commissioner to measure the properties of the parties with reference to the title deeds and F.M.B so as to locate the extent of property encroached by the defendants.