In E.Achuthan Nair (10th supra), the Apex Court held that suit for demarcation of property is maintainable since it is a suit of civil nature and cognizance of which is not barred. Thus, dispute regarding identification of boundary between two adjacent land owners is certainly a dispute of civil nature and it is not barred either expressly or impliedly

THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

C.R.P.No. 5837 OF 2015

19-02-2016

Sarala Jain, W/o Mahaveer Jain, 40 years, Business, R/o Dubba, Nizamabad, and
others.PETITIONERS

Sangu Gangadhar, S/o Buchanna, 60 years, Agriculture, Dichpally, Nizamabad,
and others.RESPONDENTS

Counsel for Petitioners:K.M.Mahender Reddy.

Counsel for Respondents:B.Venkat Rama Rao.

HEAD NOTE:

? Cases referred:
1.2013 (3) ALD 64 (SC)
2.2011 (2) ALD 472
3.2010 (5) ALD 83
4.2009 (5) ALD 459
5.2006 (1) ALD 372
6.2004 (2) ALD 426
7.KERLT-1966-0-86
8.MANU/MH/0871/2003
9.R.S.A.No. 258/2004 (INJ)
10 (1987) 4 SCC 71
11(2003) 6 SCC 641
12.1999 (5) ALD 113
13.(2008) 8 SCC 671
14.AIR 1990 CALCUTTA 26
15.AIR 1983 AP 214
16.AIR 1975 SC 1810
17.AIR 1967 SC 436

THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

CIVIL REVISION PETITION No. 5837 OF 2015

ORDER:
This revision petition is filed by respondent Nos. 1 to 3-defendant Nos. 1
to 3 in I.A.No. 1390 of 2012 in O.S.No. 322 of 2012 on the file of the Court of
Principal Junior Civil Judge, Nizamabad (for short, ‘the trial Court’), under
Article
227 of the Constitution of India to revise the order dated 23-11-2015 passed by
the trial Court appointing an advocate commissioner to fix boundaries of
schedule property by exercising power under Order 26 Rule 1 read with Section
151 of the Code of Civil Procedure (for short, ‘C.P.C.’).
For convenience of reference, the ranks given to the parties before the
trial Court will be adopted throughout this order.
The petitioner-plaintiff filed the suit for perpetual injunction against
the
respondents-defendants and for demarcation of schedule property alleging that
he was the absolute owner of agricultural land in S.No. 329 of an extent of Ac.
18.32 guntas situated at Nadepalli Village Sivaru, Dichpally Mandal, Nizamabad
District. The petitioner succeeded the same from his father Sangu Buchanna,
S/o Chinnanna. Out of Ac. 18.32 guntas, the petitioner sold an extent of Ac.
15.11 guntas to the respondents while retaining Ac. 3.21 guntas for himself.
Thus, he is the owner of Ac. 3.21 guntas i.e. schedule property. Taking
advantage of illiteracy of the petitioner, the respondents raised a boundary
dispute only to grab the land of the petitioner by changing boundary stones and,
thereby, causing inconvenience. Having no other alternative, the petitioner
submitted an application to the Assistant Director, Survey and Land Records,
Nizamabad, to fix boundaries of his agricultural land in an extent of Ac. 3.21
guntas. Accordingly, on 01-01-2012, Mandal Surveyor, Dichpally, along with
Village Revenue Officer, Nadepalli Village, surveyed the land and fixed boundary
stones. Despite fixing boundary stones, the respondents are still raising
boundary dispute and attempting to encroach schedule property. Again, the
petitioner requested the Assistant Director, Survey and Land Records to conduct
survey of schedule property. Acceding to the request of the petitioner, the
Assistant Director, Survey and Land Records, Nizamabad, along with V.R.O.,
Nadepalli Village, again conducted survey, demarcated the land i.e. schedule
property, fixed boundaries vide proceedings No. A3/418/2012 dated 12-06-2012
and prepared a trench map. Even thereafter, the respondents continued to raise
the boundary dispute. Therefore, to avoid unnecessary complications, the
petitioner filed the suit for permanent injunction and to fix boundaries of
schedule
property with the help of surveyor. While the suit is pending, the present
petition
is filed to appoint advocate commissioner to demarcate schedule property with
the help of surveyor from the office of the Assistant Director, Survey and Land
Records.
The respondents filed counter denying material allegations inter alia
contending that appointment of advocate commissioner to survey and demarcate
schedule property and fix boundaries is misconceived, cannot be entertained
and noting down physical features of schedule property is nothing but collection
of evidence. The respondents also denied ownership of the petitioner while
contending that they are the exclusive owners and in possession and enjoyment
of the property; in the absence of proof that the petitioner is in possession
and
enjoyment of the property including ownership over the property, commissioner
cannot be appointed to demarcate the land of the respondents and to fix
boundaries of schedule property as it amounts to granting main relief; and
prayed to dismiss the petition.
Upon hearing argument of both counsel, the trial Court allowing the
petition and issued the following direction:
“Sri B.Satyanarayana Goud, Advocate, is appointed as
advocate/commissioner for the purpose of survey and demarcation of the
suit schedule property with the assistance of surveyor from the office of
Assistant Director, Survey and Land Records, Nizamabad, and fix the
boundary stones of the respondents. The fee of advocate/commissioner is
fixed at Rs.3,500/- directly payable by the petitioner/plaintiff.”
Feeling aggrieved by the order under challenge, respondent Nos. 1 to 3
filed the present revision petition raising several contentions mainly
contending
that unless the petitioner established his right and title to the property
during trial,
he is not entitled to claim the relief of appointment of advocate commissioner
to
fix boundaries of the land of the respondents, it amounts to granting pre-trial
decree and, if such relief is granted, nothing remains to be tried by the trial
Court.
Therefore, the relief granted by the trial Court is against the settled
principles of
law and prayed to allow the revision petition, exercising power under Article
227
of the Constitution of India, setting aside the impugned order passed by the
trial
Court.
During hearing, learned counsel for the respondents mainly contended
that when the suit is filed for perpetual injunction and confirmation of
schedule
property demarcated by surveyor, appointing advocate commissioner to
demarcate boundaries is misconceived and it amounts to granting the main relief
which is pre-trial decree. Consequently, the same cannot be sustained under
law. To support the contention of learned counsel for the respondents, he
placed reliance on Mohd. Mehtab Khan and others Vs. Khushnuma Ibrahim
and others . Learned counsel also contended that appointing advocate
commissioner for demarcation of the property of the respondents is nothing but
collection of evidence, the same is not permissible under law and, to support
his
contention, placed reliance on Yenugonda Bal Reddy Vs. Manemma and
others , Batchu Narayana Rao Vs. Batchu Venkata Narasimha Rao , Sagi
Vijaya Ramachandra Raju and others Vs. Koppisetti Satyanarayana and
others , and Koduru Sesha Reddy Vs. Gottigundala Venkata Rami Reddy
and others . On the strength of the principles laid down in the above
judgments, it is contended that appointment of commissioner by the trial Court
for demarcation of schedule property and to fix boundary stones to the land of
the respondents is illegal, contrary to the principles of law, it is nothing but
exercising jurisdiction illegally or irregularly and prayed to set aside the
order
passed by the trial Court.
Per contra, learned counsel for the petitioner contended that appointment
of advocate commissioner in a suit for injunction is not new and it is a well
recognized and settled principle of law that commissioner can be appointed to
demarcate boundaries which does not amount to collection of evidence. To
support his contention, learned counsel relied on D.Vidya Sagar Rao and
another Vs. K.Indira Devi and others , Pennamma Vally Vs. Achuthan
Unni , Omprakash Vs. Ramesh Ramnivas Soni and others and Laxman
Sabanna Athani Vs. Mahadev Babu Bastawade and another . Learned
counsel further contended that suit for demarcation of property and fixing
boundaries is maintainable and placed reliance on E.Achuthan Nair Vs.
P.Narayanan Nair and another . In view of the legal position in the above
decisions, the order of the trial Court does not suffer from any illegality or
irregularity. Therefore, the order under challenge does not call for
interference of
this Court and prayed to dismiss the revision petition.
Considering rival contentions and perusing material available on record,
the point that arises for consideration is thus:
“Whether appointing advocate commissioner for demarcating the property
of the respondents amounts to granting pre-trial decree, if so, whether the
order passed by the trial Court is an illegal exercise of jurisdiction and
liable to be set aside?”
The power of revision under Article 227 of the Constitution of India is
supervisory in nature and this Court can interfere with the orders passed by
subordinate Courts or tribunals only when subordinate Courts or tribunals failed
to exercise jurisdiction or where exceeded their jurisdiction or exercised
jurisdiction illegally or irregularly conferred on them. Time and again scope
of
Article 227 of the Constitution of India came up for consideration before the
Apex
Court and the Apex Court laid down certain principles. It is well settled that
High
Court can exercise supervisory jurisdiction under Article 227 of the
Constitution
of India to keep subordinate Courts or tribunals within the boundaries of their
jurisdiction. The Apex Court, in State, through Special Cell, New Delhi Vs.
Navjot Sandhu @ Afshan Guru and others , examined the power of High
Court to interfere with orders of subordinate Courts or Tribunals in exercise of
its
supervisory jurisdiction under Article 227 of the Constitution of India. In the
light
of the law laid down by the Apex Court, it is abundantly clear that this court
can
exercise only its jurisdiction in exceptional circumstances which is supervisory
in
nature. Therefore, if the Court finds that there is an illegal exercise of
jurisdiction
by the trial Court, this Court can interfere with the order under challenge
otherwise this Court cannot exercise power though the order is wrong.
Keeping in mind the scope of Article 227 of the Constitution of India, I
would like to advert to various contentions of both counsel. The main
contention
of learned counsel for the respondents is that the suit is filed for both
permanent
injunction and confirmation of survey and demarcation of schedule property
conducted by surveyor by fixing survey stones to the respective extents but such
decree can be passed only after completion of trial by pronouncing judgment
and, if any of the reliefs claimed by the petitioner is granted, it amounts to
grant
of pre-trial decree which is impermissible under law whereas learned counsel for
the petitioner would contend that commissioner can be appointed for
demarcation of the property where there is boundary dispute but did not advance
any argument that appointment of advocate commissioner for demarcating
boundaries of the property does not amount to pre-trial decree.
In view of the specific contention raised by learned counsel for the
respondents, it is appropriate to advert to the reliefs claimed in the plaint.
As per
the plaint, the petitioner claimed the following reliefs extracted hereunder:
“(a) a decree for permanent injunction be passed against the defendants
restraining them from alienating, sell, mortgaging etc., to the extent of
their respective extents as narrated in the plaint to third parties till the
disposal of the suit; (Amended as per the orders of this Hon’ble Court in
I.A.No. 253 of 2015 dated 25-06-2015);
(b) a decree confirming the survey and demarcation of suit schedule property
conducted by the surveyor by fixing the boundary stones to the
respective extents of the plaintiff and the defendants;
(c) .
(d) .”
It is clear from the reliefs claimed by the petitioner that the first
relief is
permanent injunction restraining the defendants from alienating the property
etc.,
to third parties till disposal of the suit. The very first relief is of
unmeaning
reference for the reason that permanent injunction can be granted under Section
38 of the Specific Relief Act, 1963 (for short, ‘the Act of 1963’), against the
defendants if there is any infringement or invasion of legal right or obligation
of
the plaintiff but here the petitioner sought the relief of permanent injunction
restraining the respondents from alienating their respective extents till
disposal of
the suit while admitting that he sold Ac. 15.11 guntas out of Ac. 18.32 guntas
which devolved upon him from his father by succession. Thus, the relief claimed
in clause (a) is to pass a decree for permanent injunction till disposal of the
suit.
If injunction is granted till disposal of the suit, it is nothing but temporary
injunction during pendency of the suit. There is a marked distinction between
permanent injunction and temporary injunction as per Section 37 of the Act of
1963. Temporary injunction can be granted only during pendency of the suit and
permanent injunction can be granted only after completion of trial by
pronouncing
judgment. However, the relief claimed in clause (a) is not much relevant for
deciding the real dispute.
According to Section 75 and Order XXVI of C.P.C., Court has discretion to
appoint a commissioner but the discretion has to be exercised in a judicious and
sound manner and not whimsically. Before appointing commissioner, Court shall
examine pleadings, relief claimed and real controversy between parties. In
clause (b), the petitioner claimed to pass decree confirming the survey and
demarcation of schedule property conducted by the surveyor etc., referred in the
earlier paragraphs. In the affidavit filed along with the petition, a clear
assertion
is made that the surveyor surveyed the land on 01-01-2012 and again on
12-06-2012 on the applications of the petitioner and also issued proceedings No.
A3/418/2012. So, the petitioner sought the relief to confirm the survey
conducted by the surveyor on the two occasions referred supra whereas the trial
Court appointed advocate commissioner to demarcate schedule property with
the assistance of the surveyor and fix boundary stones to the land of the
respondents. In fact, in the petition filed under Order 26 Rule 9 of C.P.C.,
the
petitioner sought for appointment of advocate commissioner to survey schedule
property with the help of surveyor and fix boundary stones to the land of the
petitioner and the respondents but, instead of granting such relief, the trial
Court
directed the commissioner to demarcate schedule property with the assistance of
surveyor from the office of the Assistant Director and fix boundary stones to
the
land of the respondents. The order of the trial Court is bereft of any reason
for
not directing the commissioner to fix boundary stones to schedule property. In
any view of the matter, appointing advocate commissioner for demarcating
schedule property and fix boundary stones to the land of the respondents is
nothing but granting pre-trial decree in view of the law laid down by the Apex
Court in Mohd. Mehtab Khan (1st supra), wherein the Apex Court held as
follows:
“Given the ground realities of the situation, it is neither feasible nor
practical to
take the view that interim matters, even though they may be inextricably
connected with the merits of the main suit, should always be answered by
maintaining a strict neutrality, namely, by a refusal to adjudicate. Such a
stance
by the Courts is neither feasible nor practicable. Court, therefore, will have
to
venture to decide interim matters on consideration of issues that are best left
for
adjudication in the full trial of the suit. In view of the inherent risk in
performing
such an exercise which is bound to become delicate in most cases the principles
that the Courts must follow in this regard are required to be stated in some
detail
though it must be made clear that such principles cannot be entrapped within
any strait-jacket formula or any precise laid down norms. Courts must
endeavour to find out if interim relief can be granted on consideration of
issues
other than those involved in the main suit and also whether partial interim
relief
would satisfy the ends of justice till final disposal of the matter. The
consequences of grant of injunction on the defendant if the plaintiff is to lose
the
suit along with the consequences on the plaitiff where injunction is refused but
eventually the suit is decreed has to be carefully weighed and balanced by the
Court in every given case. Interim reliefs which amount to pre-trial decrees
must
be avoided wherever possible.”
If the principle laid down in the above judgment is applied to the present
facts of the case, appointing advocate commissioner by the trial Court for the
purpose of demarcating schedule property and fix boundary stones to the
property of the respondents amounts to granting pre-trial decree as it satisfied
part of the reliefs claimed in the suit. In such case, commissioner cannot be
appointed for the said purpose. Yet, the relief claimed by the petitioner in
clause
(b) is only to confirm the survey and demarcation of schedule property conducted
by the surveyor by fixing boundary stones to respective extents of both parties.
In para Nos. 7 and 8 of the plaint, it is averred that the petitioner got
surveyed
schedule property and fixed boundary stones demarcating his property. In view
of demarcation of the property by surveyor already, the petitioner sought for
confirmation of the survey and demarcation of schedule property conducted by
the surveyor. When surveyor already demarcated schedule property and fixed
boundary stones to respective extents of both parties, question of again
appointing advocate commissioner to demarcate the property and fix boundary
stones to the property of the respondents is erroneous on the face of record in
the absence of any allegation that the boundary stones are removed. Therefore,
I find substantial force in the contention of learned counsel for the
respondents.
However, learned counsel for the petitioner except contending about
maintainability of the suit for fixation of boundaries, no legal position is
brought to
my notice to support the order passed by the trial Court appointing advocate
commissioner for the said relief which amounts to grant of pre-trial decree.
Therefore, it is clear that the order of the trial Court is an illegal exercise
of
jurisdiction that conferred on it as the order passed by the trial Court is
beyond
the scope of the suit and not even incidental. Hence, the same is liable to set
aside on this ground.
The main contention of learned counsel for the respondents is that
appointment of advocate commissioner to make local investigation amounts to
collection of evidence and, in support of his contention, placed reliance on
Sagi
Vijaya Ramachandra Raju (4th supra), Batchu Narayana Rao (3rd supra),
Koduru Sesha Reddy (5th supra) and Yenugonda Bal Reddy (2nd supra). In all
the above four judgments, this Court consistently held that appointment of
advocate commissioner, in a suit for declaration of title and permanent
injunction
or in a suit for injunction simplicitor, to note down physical features amounts
to
collection of evidence. A similar view was expressed by this Court in Malla
Bhaskara Rao and others Vs. Konchada Ananda Rao . Whereas, learned
counsel for the petitioner; while contending that in a suit for demarcation of
boundaries and for injunction, advocate commissioner can be appointed; placed
reliance on D.Vidya Sagar Rao (6th supra), Omprakash (8th supra), wherein this
Court and the High Court of Bombay (Nagpur Bench) respectively held that when
there is a boundary dispute and both parties alleging encroachment of their
property, identification of the property by demarcation is necessary. Learned
counsel for the petitioner also drawn attention of this Court to Pennamma Vally
(7th supra), wherein a Division Bench of Kerala High Court held that
“It is of frequent occurrence, especially in cases where the disputed line of
division runs between waste lands which have not been the subject of definite
possession, that no satisfactory evidence is obtainable. That circumstance
cannot relieve the Court of the duty of settling a line, upon the evidence which
is
laid before it. The ordinary rule regarding the onus incumbent on the plaintiff
has
really no application to cases of that kind. The parties to the suit are in the
position of counter-claimants; and it is the duty of the defendant, as much as
of
the plaintiff, to aid the Court in ascertaining the true boundary. Where any
other
rule recognized, the result might be that some boundaries would be incapable of
judicial settlement.”
In Laxman Sabanna Athani (9th supra), Karnataka High Court (Circuit
Bench at Dhrawad) reiterated the same principle that commissioner can be
appointed, when there is dispute regarding boundary, to demarcate the property
with the help of Assistant Director of Land Record etc., and commissioner report
can be relied upon in the absence of any mala fide attached to the officer.
In view of the law declared by this Court and other Courts, there is
little
controversy about appointment of advocate commissioner to demarcate
boundaries of property. However, the Supreme Court in Haryana Waqf Board
and others Vs. Shanti Sarup and others at paragraphs 4 to 8 held as under:
“Admittedly, in this case, an application was filed under Order 26 Rule 9 of the
Code of Civil Procedure which was rejected by the trial Court but in view of the
fact that it was a case of demarcation of the disputed land, it was appropriate
for
the Court to direct the investigation by appointing a Local Commissioner uder
Order 26 Rule 9 C.P.C.
The appellate Court found that the trial Court did not take into consideration
the
pleadings of the parties when there was no specific denial on the part of the
respondents regarding the allegations of unauthorized possession in respect of
the suit land by them as per Para 3 of the plaint. But the only controversy
between the parties was regarding demarcation of the suit land because the land
of the respondents was adjacent to the suit land and the application for
demarcation filed before the trial Court was wrongly rejected.
It is also not in dispute even before the appellate Court, the appellant Board
had
filed an application for appointment of a Local Commissioner for demarcation of
the suit land. In our view, this aspect of the matter was not at all gone into
by the
High Court while dismissing the second appeal summarily. The High Court
ought to have considered whether in view of the nature of dispute and in the
facts of the present case, whether the Local Commissioner should be appointed
for the purpose of demarcation in respect of the suit land. For the reasons
aforesaid, we are of the view that the High Court ought to have considered this
aspect of the matter and then decided the second appeal on merits.
Accordingly, we set aside the judgment and decree passed in the second appeal
and the second appeal is restored to its original file. The High Court is
requested
to decide the second appeal in the light of the observations made hereinabove
within six months from the date of supply of a copy of this order to it. The
appeal
is thus allowed. There will be no order as to costs.”
In view of the above judgment, commissioner can be appointed for
localization of property when there is dispute or issue with regard to identity
of
property in litigation. Therefore, by applying the principle laid down in
Haryana
Waqf Board (13th supra), commissioner can be appointed for demarcating
property even if the law laid down by this Court is ignored in view of the
inconsistency in the law declared by this Court.
One of the contentions of learned counsel for the petitioner is that suit
for
demarcating boundaries is maintainable. In E.Achuthan Nair (10th supra), the
Apex Court held that suit for demarcation of property is maintainable since it
is a
suit of civil nature and cognizance of which is not barred. In the facts of the
above judgment, during pendency of the suit, the trial Court appointed
commissioner to locate boundary in the manner indicated by the agreement
dated 25-09-1960. The commissioner did, in fact, submit a report locating the
boundary. Thus, dispute regarding identification of boundary between two
adjacent land owners is certainly a dispute of civil nature and it is not barred
either expressly or impliedly. Learned counsel also placed reliance on
Ratnamala Dasi and others Vs. Ratan Singh Bawa ; Government of the
State of Orissa, Bhubaneshwar Vs. Jaldu Rama Rao and Company,
Machilipatnam ; M/s. Supreme General Films Exchange Limited Vs. High
Highness Maharaja Sir Brijnath Singhji Deo of Maihar and others ; and
Vemareddi Ramaraghava Reddy and others Vs. Konduru Seshu Reddy and
others . In all the judgments, this Court and other High Courts consistently
held
that suit for demarcation of property is maintainable since cognizance of it is
not
barred under Section 9 of C.P.C. The order under challenge before this Court is
limited to appointment of advocate commissioner for demarcating the property
with the assistance of surveyor and fix boundaries to schedule property.
Maintainability of the suit in a civil Court is not an issue in the subject
matter of
the revision. In those circumstances, this Court need not examine the issue of
maintainability of the suit for demarcation of boundaries of schedule property
etc.,. Accordingly, no finding is recorded.
To appoint an advocate commissioner, Court has to keep in mind the
following:
(1) Total pleadings of both parties;
(2) Relief claimed in suit;
(3) Appointment of advocate commissioner for specific purpose at
interlocutory stage shall not amount to grant pre-trial decree; and
(4) Necessity to appoint advocate commissioner to decide real controversy
between parties.
The trial Court appointed advocate commissioner for fixing boundaries to
the property of the respondents only though the petitioner sought for
appointment of advocate commissioner to demarcate schedule property and fix
boundary stones to his property and the property of the respondents. Apart from
that, the relief under clause (b) in the plaint is only to confirm the
boundaries
since the property was already demarcated twice. As such, appointment of
advocate commissioner for the same purpose does not arise. If the suit is filed
for fixing boundaries by the Court, then appointment of advocate commissioner
would serve purpose to decide the real controversy between the parties but it is
not even the case of the petitioner that schedule property is not demarcated.
In
such case, appointment of advocate commissioner is wholly unnecessary and it
is beyond the scope of the suit. The trial Court did not look into the reliefs
claimed in the suit; plea of the petitioner regarding survey of land and
fixation of
boundary stones; and the purpose for which commissioner is sought to be
appointed. In those circumstances, the order passed by the trial Court cannot
be
sustained as it amounts to granting pre-trial decree in view of the law declared
in
Mohd. Mehtab Khan (1st supra) and it is, therefore, liable to be set aside.
Accordingly, the point is answered in favour of the respondents and against the
petitioner. .
In the result, the civil revision petition is allowed setting aside the
order
dated 23-11-2015 passed in I.A.No. 1390 of 2012 in O.S.No. 322 of 2012 on the
file of the Court of Principal Junior Civil Judge, Nizamabad. Pending
miscellaneous petitions in this revision, if any, shall stand closed in
consequence. No order as to costs.

_____________________________
M.SATYANARAYANA MURTHY, J.
Date: 19-02-2016

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