AP HIGH COURT AMARAVATHI
Code of Civil Procedure, 1908 — Order XXVI Rules 9 & 10
Appointment of Advocate Commissioner — Local investigation — Scope.
Local investigation may be ordered where it is requisite or proper for elucidating matters in dispute, particularly in cases involving boundary and identity of land. Commissioner’s report is only a piece of evidence and is open to objections and rebuttal.
(Paras 16–19, 21–22)
Land Grabbing (Prohibition) Act, 1982 — Proceedings
Dispute regarding encroachment — Rival claims with reference to different NTS numbers.
Where petitioners allege encroachment in NTS No.6 and respondents assert possession in NTS Nos.3, 4 & 5, local inspection by Advocate Commissioner with assistance of Mandal Surveyor is necessary to elucidate the dispute.
(Paras 20–22)
Advocate Commissioner — Not for collection of evidence
Appointment of Commissioner to note physical features, measurements and boundaries does not amount to collection of evidence, but is a procedural mechanism to assist the Court in arriving at the truth.
(Paras 19–22)
Article 227 of the Constitution of India — Scope of interference
Supervisory jurisdiction — Not appellate.
High Court will not interfere under Article 227 where the Trial Court has exercised discretion within jurisdiction, unless there is patent illegality, perversity, lack of jurisdiction, or grave miscarriage of justice.
(Paras 23–27)
Discretion of Trial Court — Appointment of Commissioner
Once the Trial Court forms an opinion that local investigation is necessary for resolving boundary disputes, such exercise of discretion aimed at advancing substantial justice cannot be interfered with under Article 227.
(Paras 21, 23, 26–27)
ANALYSIS OF FACTS AND LAW
I. Factual Background
The petitioner filed LGOP No.119 of 2012 alleging land grabbing by respondent Nos.1 to 10 under the Land Grabbing (Prohibition) Act, 1982 (Para 3).
Tahsildar’s report dated 22.03.2012 indicated encroachment and construction of dwelling structures (Para 4).
Respondents denied land grabbing and asserted independent title under registered sale deeds, claiming their properties fall in NTS Nos.3, 4 & 5, not in NTS No.6 (Paras 5, 8).
After petitioner’s evidence concluded, respondents’ evidence was closed as nil due to non-appearance, following which respondents filed:
I.A.No.1561 of 2024 to reopen evidence, and
I.A.No.1597 of 2024 seeking appointment of Advocate Commissioner (Paras 6–8).
Trial Court allowed both applications. The petitioner challenged only the appointment of Advocate Commissioner (Para 12).
II. Legal Issue
Whether the Trial Court acted illegally or without jurisdiction in appointing an Advocate Commissioner under Order XXVI Rule 9 CPC, warranting interference under Article 227 of the Constitution of India.
(Para 15)
III. Legal Principles Applied
Order XXVI Rule 9 CPC empowers the Court to order local investigation where it is necessary to elucidate matters in dispute (Paras 16–19).
The primary duty of the Court is to arrive at the truth, and the Commissioner’s report is only evidentiary in nature (Para 19).
Appointment of Commissioner is justified in boundary and identity disputes, particularly when rival parties claim different survey/NTS numbers (Paras 20–22).
Under Article 227, High Court’s power is supervisory and cannot be exercised as an appellate power; interference is limited to jurisdictional errors or grave injustice (Paras 23–27).
IV. Application of Law to Facts
The dispute centered on whether respondents were in NTS No.6 (as alleged by petitioner) or in NTS Nos.3, 4 & 5 (as claimed by respondents) (Paras 21–22).
Determination of boundaries and physical features was essential to resolve the controversy.
The Trial Court exercised discretion to appoint Advocate Commissioner with assistance of Mandal Surveyor and Revenue authorities to ascertain boundaries with reference to Ex.A3 (Para 11).
The petitioner retained the right to object to the report and lead rebuttal evidence, ensuring no prejudice (Para 22).
The order did not suffer from perversity, illegality, or lack of jurisdiction (Paras 26–27).
V. Conclusion
The Trial Court acted within its jurisdiction and in accordance with settled principles governing Order XXVI Rule 9 CPC. The appointment of Advocate Commissioner was a legitimate procedural aid. No ground existed for interference under Article 227.
RATIO DECIDENDI
Where rival parties in a land-grabbing proceeding claim possession with reference to different NTS numbers, the Trial Court is justified in appointing an Advocate Commissioner under Order XXVI Rule 9 CPC to note physical features and fix boundaries with the assistance of revenue and survey authorities. Such appointment is a procedural aid to elucidate the dispute, does not amount to collection of evidence, and does not cause prejudice as parties retain the right to object and lead rebuttal evidence. Exercise of such discretion, being within jurisdiction and in accordance with settled principles, does not warrant interference under Article 227 of the Constitution of India.
