Order By Court:

1. Defendants 2 and 32 in O.S.No.91 of 1983 on the file of subordinate Judge, Chirala preferred A.S.No.801 of 1995.

2. Respondents 1 to 4 in the appeal are the plaintiffs 1 to 4 in the said suit and they had instituted the suit praying for the relief of recovery of possession, which had been decreed.

3. A Commissioner was appointed in I.A.No.1450 of 1983 in O.S.No.91 of 1983 and a Report was filed by him, wherein the learned Commissioner observed, in the warrant the survey number has been given as 146/1A. But, no FMB or any document or any legal evidence was produced before me to locate that number. As there was no time to take the assistance of the surveyor and no surveyors assistance was provided by the parties to me, I could not locate that number. Just I saw the plot shown by the plaintiff-Mallarapu Chinavelu and noted the physical features therein.

4. The learned Judge at Para-37 in relation to the Report of the Commissioner observed as follows:

An Advocate-Commissioner inspected the suit property seen after filing of the suit and filed his report along with plan into court. A reading of it would go to show that the entire land is vacant as on the date of the suit. That being a case, if at all there any constructions they are subsequent to the suit. As such, the court cannot apply the principles of equity. Hence these issues are answered in favour of the plaintiffs and against the defendants.

5. The appellants filed ASMP.No.1931 of 2005 for reception of additional evidence. Likewise, a third party purchaser, K.Hanumantha Rao, pendente lite filed ASMP.No.1354 of 2005 to implead him as 36th respondent on the ground that the decree for possession obtained by the plaintiffs is being executed even as against his property, which in fact is not the subject matter of the litigation. These applications are being resisted by the plaintiffs.

6. Elaborate submissions were made by Sri Haranath, learned counsel representing the proposed party-Purchaser-Pendente lite, who intends to come on record in this appeal and Sri Ram Gopal, learned counsel representing the appellants and Sri Movva Chandrasekhar Rao, learned counsel representing respondents 1 to 4 in the appeal-the plaintiffs in the suit. There appears to be a serious controversy in relation to the identity of the property, location of the property and also there is controversy whether such property is in existence at all or not. Several decisions were relied upon by the respective counsel in relation to the pending applications. It appears such controversy was put forth even before the learned trial Judge. But, however, as can be seen from the findings on the concession made, the learned Judge thought it fit to decree the suit. Further, it had been pointed out that originally, the suit was filed for an extent of only Ac.0.50 cents and subsequent thereto, the same was amended showing an extent of Ac.0.85 cents.

7. The findings recorded by the learned trial Judge at para-35 also may be relevant for the present purpose and the said finding are as hereunder:

It is the version of the plaintiffs that with a view to partition their family properties, they went to the suit land, and tried to measure it, but the defendants prevented them high-handedly from doing so, and as such, they filed the suit. It is also their version that they are in possession of Ac.0.50 cents of land and the remaining land of Ac.0.85 cents (Suit property) is to the north of that Ac.0.50 cents, and that the defendants who purchased various plots from D-1 and D-2 are interested in the said land and as such, they impleaded them as parties to the suit to avoid multiplicity of litigation. D.Ws.2 to 6 admitted that the plaintiffs are in possession of Ac.0.50 cents of land and the disputed land is not part and parcel of the land claimed by them and it is on the north of Ac.0.50 cents of land which is in possession of the plaintiffs. D.W.2 claimed right and title to the property which is to the south of Ac.0.50 cents which is in possession of the plaintiffs. In his cross-examination he stated that he has no objection if decree is granted for the lands claimed by the plaintiffs. Similarly the other witnesses have deposed that the lands purchased by them are different from the suit land. In view of these admissions, it cannot be said that the defendants would suffer injury if the suit is decreed as prayed for. As pointed out at the out-set the defendants have claimed title to the property purchased by them through plaintiffs only, who are the original owners of the entire extent in S.No.146/1A . The plaintiffs have not claimed possession of the land already sold by them to the defendants 1 and 2 and other third parties. They are claiming the balance of land of Ac.1.35 cents of land owned by them. If at all such extent is there in the suit survey number, they will take possession of it. If, the extent is less than Ac.4.05 cents in the suit survey number, then the plaintiffs having already parted with Ac.2.70 cents will not be in a position to proceed against the said extent which is in possession of the defendants and 3rd parties as purchasers. In other words, they will take possession of the remaining land only. Viewed from this angle, absolutely no prejudice will be caused to the defendants if the suit is decreed for possession. That apart, it is not the case of the defendants that the plaintiffs are claiming possession of the land already alienated by them. Hence I hold that the plaintiffs are entitled for possession of Ac.0.85 cents of land for which the suit is filed.

8. It is needless to say that the present controversy is in relation to recovery of possession of an extent of Ac. 0.85 cents of land in survey number 146/1A of Kothapeta village. There appears to be some controversy relating to the directions, south or north as deposed by the witnesses and also in relation to the exact identity. Certain submissions were made that the property under which the proposed party is claiming does not specify even the survey number. Though a Commissioner was appointed before the Court of first instance, the learned Commissioner just noted down the physical features and a finding had been recorded that by the time of the institution of the suit, the property was lying vacant and there were no constructions. It is brought to the notice of this Court that the proposed party raised objections, which had been negatived and the same was carried by way of an Appeal, wherein the proposed party was unsuccessful and ultimately, the matter is pending before this Court as CMSA No.90 of 2005. It is also brought to the notice of this Court that certain other similar objections had been raised and as far as one such objection is concerned, an appeal is pending before the District Court, Ongole. Several decisions had been relied upon on the question whether a purchaser-pendente lite be impleaded as a party or not that too, at a belated stage, the operation of doctrine of lis pending and whether these questions are only collateral or incidental to the main controversy. These aspects need not be decided at this stage inasmuch as the material available on record and also in the light of the report of the Commissioner and also the findings recorded by the trial Court, the exact identity and the location of the extent of Ac. 0.85 cents in survey number 146/1A, being in serious dispute, in stead of making an order of remand, I am of the considered opinion that it would be just and proper that a Commissioner may have to be appointed in this regard for the aforesaid purposes to locate the property so as to and to resolve this controversy conveniently and effectively with the assistance of a surveyor, if need be.

9. It is no doubt true that none of the parties to the litigation had moved any application before this Court for appointment of a Commissioner.

10. Order 26 Rule 9 of C.P.C. reads as hereunder:

Commissions to make local investigations:

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.

11. In Gajraj and others V. Ramadhar and others AIR 1975 ALLAHABAD 406 it was held as under:

The appellate court has the power to issue a commission for local inspection in the same manner in which a trial court can act under Order 26 Rule 9 CPC. Thus, where the lower appellate court finds that clear demarcation of boundaries is necessary for giving a finding on the question of ownership what it should do is not to remand the entire suit under O.41, Rule 23 but issue a commission under Order 26, Rule 9. The issuance of a commission for local investigation will not necessitate a recourse to the provisions of taking additional evidence under Order 41 Rule 27 CPC.

12. The present appointment of Commissioner is for a different purpose and it is clear as can be seen from the record and from the report filed by the Commissioner. The relevant portion of the report had been already referred to supra.

13. Hence, in the facts and circumstances of the case, without expressing any opinion on all other questions, which had been canvassed in elaboration by the learned counsel on record, I am inclined to issue the following directions as specified under:

i) The learned Senior Civil Judge, Chirala to appoint an Advocate-Commissioner for the purpose of taking measurements of the total extent of survey number 146/1A of Kothapet Village, demarcate, identify and exactly locate the plaint schedule property an extent of Ac. 0.85 cents therein by taking the assistance of a surveyor.

ii) The learned Judge is at liberty to fix the remuneration of the learned Commissioner and also the other incidental aspects like giving the assistance of the surveyor and the other requests, if any, which may be made by the learned Commissioner in this regard and the parties may have to bear the expenses;

iii) It is needless to say that the learned Judge is at liberty to follow the same procedure to be followed in the case of appointment of a Commissioner in usual course while exercising powers by the original Court;

iv) It is also made clear that the learned Judge is at liberty to record the evidence of the said Commissioner, the surveyor either on the request of the parties or even suo-motto depending upon the facts and circumstances;

v) The learned Judge to carry out these directions and submit the report along with the report of the Commissioner and the other material evidence which may be required in this regard within a period of four months from today;

vi) The learned Judge also may issue necessary suitable directions to take into consideration the title deeds, which may be produced before the learned Commissioner.

vii) The parties are at liberty to file the work memos if any, and assist the Commissioner in all respects.

viii) Learned Judge to submit the report of the Commissioner, and the other connected material and evidence if any, recorded either at the instance of the parties or suo motu along with his remarks if any, within a period of four months from to-day.

Let the office list the matter after four months.