9 Jan 2023 7:30 AM GMT
The Andhra Pradesh High Court observed that an Advocate commissioner under Order 26 Rule 9 cannot be appointed if there is no dispute about the property, identity and its measurements. “The local investigation is the best way to find out the possession when there is dispute regarding identity of the property. Under the guise of local investigation, party who is making application will...
The Andhra Pradesh High Court observed that an Advocate commissioner under Order 26 Rule 9 cannot be appointed if there is no dispute about the property, identity and its measurements. “The local investigation is the best way to find out the possession when there is dispute regarding identity of the property. Under the guise of local investigation, party who is making application will not be allowed to collect the evidence.”
The Plaintiffs had filed a suit seeking a declaration that they have a right to access the Bypass road from the plaint schedule property from every inch of its width of plaint schedule on its western side as well as a permanent injunction restraining the Defendants from interfering with the plaintiffs right of access to the western side Bypass road in any manner.
The plaintiff’s contention was that the Bypass road was the Plaintiff’s only access to reach their house. Pending the suit, an application was filed for appointment of an advocate commissioner to note down the physical features and measurements of the schedule property. The application was dismissed by the Trial Court. Against the order of dismissal, the revision is filed.
K.V.S.S. Prabhakara Rao, counsel for petitioners submitted that to decide the issue of easement rights, noting down the physical features is necessary and report of the advocate commissioner would help in deciding the dispute.
Observation of the Court
The Bench on examining the record observed as “The object of local inspection under Order XXVI Rule 9 of CPC is to collect evidence at the instance of the party who relies upon the same and which evidence cannot be taken in the Court but could be taken only from its peculiar nature on the spot. Advocate Commissioner, in effect, is a projection of the Court appointed for a particular purpose. The report of the Commissioner within the suit shall form part of the record.”
In the present case, the court noted that there was no dispute regarding the identity or location of plaint schedule property and the property belonging to the respondent. In the absence of any dispute regarding encroachment or overlapping of property, relief sought for by the plaintiff to note down the physical features is nothing but collection of evidence and the same is impermissible, court said. “The plaintiffs have to plead and prove that they have no other access to reach their house except the western side Bypass road,” it added.
In view of the same, the revision was dismissed as the Court found no illegality in the order of the Trial Court in declining to appoint the Advocate Commissioner.
CASE TITLE: KANDUKURI RAJABABU Versus THE RAJAHMUNDRY MUNICIPAL CORPORATION
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