1. All these revisions, under Article 227 of the Constitution of India, are filed challenging the interlocutory orders, dated 20.04.2021, dismissing I.A. Nos. 567 of 2019, 564 of 2019, 565 of 2019 and 566 of 2019 in O.S. No. 290 of 2017 on the file of the Court of Principal Senior Civil Judge, at Gajuwaka.

2. I.A. No. 567 of 2019 is filed under XXVI Rule 9 read with Section 151 CPC to appoint an advocate commissioner with the help of Mandal Surveyor to note down the physical features, measure the properties of the petitioner and the respondents; I.A. No. 564 of 2019 is filed under Section 151 CPC to reopen the matter to adduce further evidence by recalling the plaintiff; I.A. No. 565 of 2019 is filed under Order XVIII Rule 17 CPC to recall the petitioner by reopening the matter to adduce further evidence; and, I.A. No. 566 of 2019 is filed under Order VII Rule 14(2) read with Section 151 CPC to grant leave to receive and mark the registered gift settlement deed, dated 02.06.2015.

3. Heard Sri Mangena Sree Rama Rao, learned counsel appearing for the petitioner/petitioner/plaintiff and Sri T.V.S. Prahakara Rao, learned counsel appearing for respondents/respondents/defendants.

4. The issue involved in all these revisions are inter-connected and the parties being the same, all these revision petitions are heard together and are being taken up for disposal.

5. The facts leading to filing of these petitions, in brief, are as follows:

(a) The plaintiff filed the suit against the defendants seeking the relief of declaration of title, recovery of possession, mandatory injunction and for other reliefs. The plaint schedule property is of an extent of 24.2 square yards of site in Sy. No. 54/1 (old), new Survey No. 118/9 of Srinagar area of Chitgantiyada village, Gajuwaka Mandal. The plaintiff and her mother, who is the donor of the property, were examined as PWs 1 & 2 and the matter is posted to 04.09.2019 for defendants' evidence. However, instead of filing the evidence affidavit, the defendants filed a memo to close their evidence as exhibits B1 and B2 were already marked. Hence, the suit is posted to 11.09.2019 for arguments. The defendants approached the Court with unclean hands by suppressing the real facts. After filing of the suit, the enquiries made by the plaintiff revealed that the 1st defendant executed a registered gift settlement deed dated 02.06.2015, in favour of the 2nd defendant bearing document No. 1333/2015, by mentioning wrong boundaries contrary to the boundaries mentioned in exhibit B1. As per the gift settlement deed, the eastern boundary is mentioned as 'Madaka Saraswathi gariche Viduvabadina Road'. In fact, the mother of the plaintiff never left any land for the purpose of road. Originally, there is a road towards northern side of the property of the mother of the plaintiff and the property of the plaintiff. As such, there is no necessity either for the plaintiff or her mother to leave the land for formation of the road. By showing the eastern boundary as a road under the guise of registered gift settlement deed, the defendants constructed building illegally by encroaching the property of the plaintiff. In fact, the defendants purchased only an extent of 240 square yards covered by exhibit B1, whereas on ground, they encroached part of the property of the plaintiff covered by exhibit A3. Moreover, to elicit the real truth quite intentionally the defendants did not enter into the witness box. As such, in order to establish his case, it has become necessary for the plaintiff to seek appointment of an advocate commissioner with the help of a Mandal Surveyor to note down the physical features, measure the properties of the plaintiff and the defendants so also the disputed property. The defendants are intentionally not coming forward to depose real facts. Hence, I.A. No. 567 of 2019 was filed.

(b) In order to place the aforesaid facts, two applications in I.A. Nos. 564 of 2019 and I.A. No. 565 of 2019 were filed requesting to reopen the matter to file the registered gift settlement deed of the 2nd defendant and to recall the petitioner to adduce further evidence respectively. I.A. No. 566 of 2019 is filed with a prayer to grant leave, receive and mark the registered gift settlement deed, dated 02.06.2015.

(c) The 2nd respondent filed separate counters in all the applications denying the averments made therein. The substance of the case of the respondents, in brief, is as follows:

The applications are not maintainable. There are no bona fides to entertain the applications. The gift deed is of the year 2015 whereas the present suit was filed in the year 2017. After having come to know of the execution of the registered gift deed only, the 2nd respondent was added as a party second respondent. This respondent will get any right whatever the 1st respondent got through her title deed of the year 1982, dated 10.12.1982 under exhibit B1. When once PWs 1 & 2 have categorically admitted that there is no land in between Plot Nos. 12 and 13 belonging to the mother of the plaintiff and the 1st respondent, the question of reopening the matter and recalling PW1 for the purpose of receiving additional document and to conduct localization of the property by appointing an advocate commissioner does not arise. The plaintiff got conducted a survey and if the report of survey is placed on record, the truth will come out. These applications are nothing but abuse of process of Court and lack bona fides. Filing of these frivolous and unwarranted applications at the time of arguments is only to protract the matter. The applications are liable to be dismissed.

6. On merits, the trial Court dismissed I.A. No. 567 of 2019 refusing to appoint advocate commissioner observing that the plaintiff, for the reasons best known to him, struck off document No. 4, which is survey report given by licenced surveyor, and therefore, there is no reason to appoint advocate commissioner. The trial Court further refused to receive the registered gift settlement deed and dismissed I.A. No. 564 of 2019 filed to reopen the matter for the purpose of receiving the gift settlement deed and as a consequence thereof, I.A. No. 565 of 2019 filed to recall the plaintiff was also dismissed. Thus, leave to receive and mark the registered gift settlement deed, dated 02.06.2015 is negative.

7. Aggrieved thereby, the petitioner filed all these revision petitions raising mainly the following grounds:

(i) Unless the property is measured to find out the respective possessions of the parties, there would not be proper adjudication of the lis;

(ii) The defendants intentionally closed their evidence and if the registered gift settlement deed, dated 02.06.2015, is received in evidence, the entire dispute can be decided;

8. At the outset, C.R.P. Nos. 677 of 2021 and 846 of 2021 are taken up.

C.R.P. No. 677 of 2021:

9. Learned counsel for the revision petitioner vehemently contends that in a suit for declaration of title and recovery of possession, it is all the more required to appoint a commissioner to measure the property and also note down the physical features as there is dispute regarding the material facts required to be proved in the suit, more particularly as the defendants failed to appear to give evidence and reported to the Court that they do not have evidence. In this regard, he further submitted that if at all the defendants come up with evidence and subject themselves to be cross-examined, the plaintiff would have an opportunity of eliciting true facts and as there is no such chance presently after the defendants reported no evidence, the plaintiff is left with no option except to seek appointment of a Commissioner, however, the trial Court erroneously dismissed the petition.

10. Learned counsel for the petitioner, in support of his contentions, relied on the decision in Bandi Samuel v. Medida Nageswara Rao (2017) 1 ALD 582 [LQ/TelHC/2016/635] , wherein at paragraph No. 20 it was observed as follows:

"20. In Bandaru Mutyalu 's case (supra), referring to the Division Bench expression of this Court in C. Veeranna 's case (supra), that was placed reliance by another Single Judge Bench expression of Savitramma's case (supra), that in turn placed reliance to the conclusion in saying there is no principle of law or rule or provision that in a suit for bare injunction, no Commissioner can be appointed to measure and demarcate the property so also even at the initial stage before commencement of trial, leave about even an ex parte Advocate Commissioner can be appointed as held by the Division Bench (supra), with no notice even required for such appointment, but for referring to Order XXVI Rule 18, requirement of notice only for execution of the warrant by the Commissioner appointed even ex parte and thereby, all depends upon the discretion of the Court from the factual matrix of each case of any necessity to consider either on the request of plaintiff or on the request of the defendant or defendants as the case may be. In Jammi Venkatakrishna Rao v. J.V.H. Ravindranath, [2015 (5) ALD 429 [LQ/TelHC/2015/357] ], Commissioner was held to be appointed to note down existing physical features which is not fishing of information. In Jajala Mariadas and another v. Bodhala Aroghyam, [2016 (1) ALT 134 [LQ/TelHC/2015/673] ], it was observed referring to the facts therein of the suit claim relating to perpetual injunction and recovery of possession by declaration of title by removal of the so-called encroachment of 91 square feet out of that B schedule property and injunction restraining interference for delivery in saying plaintiff and defendant are neighbours and defendant said to have encroached that portion of the land belonging to the plaintiff. Evidence in this regard of encroachment would only be available on the spot and no amount of oral evidence would establish the fact and for that conclusion referred the earlier expressions in relation to the nature of lis and requirement of localization of the disputed property under encroachment or otherwise, where demarcation of the disputed property is involved it is a fit case for appointment of Advocate - Commissioner, as held by the apex Court in Haryana Waqf Board's case (supra) and same was followed in Smt. Donadulu Uma Devi's case (supra) and there is no time limit for appointment of Advocate-Commissioner as even an ex parte Advocate - Commissioner for localization and noting of physical features can be appointed at the time of filing suit and delay in filing is otherwise not a ground to negate. It was ultimately in saying evidence to prove allegation of encroachment is of a peculiar nature which is available on the spot and if Advocate Commissioner is not appointed grave prejudice would be caused and allowed that application."

(ii) In Shameem Begum v. Vennapusa Chenna Reddy and another (2018) 0 AIR (AP) 17, it was held at paragraph No. 5 as follows:

"5. In fact, this Court, in Bandi Samuel and another v. Medida Nageswara Rao referring to the several expressions considered the scope of Order XXVI, Rule 9(1) and Section 75, C.P.C. The very wording of Rule IX of Order XXVI says commissions to make local investigation. 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. Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. The very rule no way says in which suit, a Commissioner can be appointed and cannot be appointed, as in any civil suit, a Commissioner can be appointed, where the Court thinks fit of necessary of any local investigation having deemed fit. The very wording is local investigation and the purpose of local investigation is to elucidate any matter in dispute itself indicates permissibility of collection of evidence, but mainly from the unique feature of such collection saves much oral evidence and valuable time of the Court and parties or by oral evidence cannot effectively be proved like measurement and demarcation, identify on ground and physical features noting etc."

(iii) In A. Rajagopal Reddy v. G. Swamy Reddy (2020) 3 ALD 484 [LQ/APHC/2020/22] , at paragraph No. 8, it was held as follows:

"8. On considering the submissions, it is obvious that in a suit for permanent injunction, the Court prima facie has to see the title and possession of the parties by the date of the filing of the suit. The petitioners/defendants have to file necessary documents and produce evidence to prove their possession and title by the date of filing of the suit. When the Court feels that elucidation of the matter requires an appointment of Commissioner, it may appoint the Commissioner for that purpose. More particularly, in a suit for injunction, appointment of a Commissioner is very essential as the dispute is mainly with regard to the extent and boundaries. In view of the facts and circumstances of the case, it is essential to appoint an Advocate Commissioner to elucidate the matter in dispute and for an effective adjudication."

(iv) In Korada Murali v. Srinivasa Sahu (2020) 3 ALD 1 [LQ/APHC/2020/32] , at paragraph No. 7, it was held as follows:

"7. In this backdrop, when the material on record is taken into consideration, particularly having regard to the order passed by the Trial Court, it cannot be stated that by appointing an Advocate Commissioner for a limited purpose of noting down the physical features, the petitioner would suffer any prejudice. Considering the stage at which the matter is now pending before the Trial Court, when a Commissioner visits and notes down the physical features of the property in dispute, it would certainly obviate necessity of leading any oral evidence. The report of the Commissioner would also preserve evidence for the parties as to nature and ground situation of this property, obtaining on the date of his visit, at the initial stage of the litigation."

(v) In Maruthai Nattar v. Ayyavu (2018) 5 MLJ 447 [LQ/MadHC/2018/2735] , the Madurai Bench of the Madras High Court referred its earlier decision in Shanmugathai v. Kamalammal and another [2017 (2) MWN (Civil) 315], wherein it was held at paragraph Nos. 12 & 13 as follows:

"12. At this juncture, it is useful to refer the Judgment of this Hon'ble Court in the case of Panjavarnam and Others v. Visuvasam Jeyaseeli (CRP (NPD) (MD) No. 2192 of 2012) wherein it was held that the advocate commissioner if appointed would be able to visit the suit property with the help of a surveyor, measure the same and locate it and also note down as to what are all in existence in the suit property. Noting down the physical features would not amount to culling out the evidence. Further this court enunciated the importance of the maxim that A Picture is worth a thousand words. Further it was held by this Honble Court in the said Judgment that it is mandate on the part of Lower court to appoint an advocate commissioner with a mission to visit the suit property with the help of surveyor and measure the same by referring to the survey map and documents of both sides and note down the physical features.

13. In yet another decision of this Court in the case of Vaithinattar and Another v. Sakkubal Ammal [AIR 2004 MAD 419 [LQ/MadHC/2004/796] ] it is held that in a suit for Declaration and Permanent Injunction, the dispute pertaining to portion of adjoining lands allegedly encroached by the defendants and the defendants denying that there was no such encroachment. This Honble Court held that the best evidence in such case could be obtained only by the Appointment of advocate commissioner. Therefore in my considered view, no prejudice will be caused to the respondent herein by appointing the advocate commissioner to visit the suit property along with the surveyor and note down the physical features. In fact, the advocate commissioners report and plan would enable the court for the purpose of throwing more light or enlighten to arrive at a fair decision. Thus the appointment of commissioner is necessary and therefore the order of court below is liable to be set-aside."

(vi) In Aathichandran @ Chandran v. Selladurai (2018) 9 Supreme (Mad) 3871, it was held at paragraph No. 12 as follows:

"12. Admittedly, the suit is for Declaration, Recovery of possession and Mandatory Injunction, in such case this Court of the view that unless a clear picture of actual physical features of the suit property is identified and visualized, a just and proper decision could not be arrived at. In the said circumstance, this Court finds that the impugned order of the Trial Court is not proper."

11. On the other hand, learned counsel for the respondents submitted that the entire case as pleaded in the written statement was admitted by the plaintiff in his cross-examination as per which the plaintiff and the 1st defendant are the immediate neighbouring owners of two plots purchased on the same date by both of them from the same vendor basing on the layout plan which is already filed in evidence and even as per the admission of PW1, there is no property of the vendor left in between the properties of the plaintiff and the 1st defendant, and therefore, to nullify the effect of cross-examination, no commissioner can be appointed and further, there is nothing for the plaintiff to establish more than what is already pleaded and has spoken in evidence. That apart, it is vehemently contended that the plaintiff pleaded that survey was conducted by a surveyor before filing of the suit and as such, document of survey report was also noted at Sl. No. 4 of the list of documents mentioned in the plaint, but the same was struck off and has not been filed which goes to show that it must be adverse to the interest of the plaintiff. It is further submitted that since already the property was got surveyed by the plaintiff, he could have filed report of survey in evidence, if at all, the plaintiff wishes to do so. But, suppressing the same, at the fag-end of the case, taking such step as prayed in the petition is not worth considering.

12. Each case is to be independently dealt with for the purpose of deciding whether there is any necessity to appoint a Commissioner or not, as could be culled out from the decisions relied on by the petitioner.

13. It is settled law that no evidence can be let in without a pleading. Already evidence was let in as per the case pleaded. After going through the cross-examination of PW1, there appears no need to appoint any commissioner to note down physical features or measure the land. If at all the plaintiff intends to get a commissioner appointed, the same could have been done at the earliest opportunity. As rightly observed by the trial Court, striking off the survey report mentioned in the plaint has relevance in the present petition. Without filing the same and not explaining why there is necessity to get a commissioner appointed, this Court does not find any merit in the revision petition filed before the trial Court. Therefore, there is no irregularity or illegality committed by the trial Court in dismissing the petition. As such, this revision petition is liable to be dismissed.

C.R.P. No. 846 of 2021:

14. I.A. No. 566 of 2019 is filed principally to file copy of the registered gift settlement deed, dated 02.06.2015, for the purpose of establishing that existence of some land of the common vendor of the plaintiff and the 1st defendant situated between their plots is referred in the said document.

15. In this regard, it is further contended that if the defendants come into witness box, the said fact would have been elicited in their cross-examination, but as they failed to appear before the Court to give evidence by reporting no evidence for them, the plaintiff lost opportunity to place before the Court the said fact which is in favour of the plaintiff's case.

16. On the other hand, learned counsel for the respondents contended that the case of the defendants is not rested on the said document, and therefore, the plaintiff cannot rely on the said document. It is further contended that if at all, the plaintiff wants to file the said document, in the evidence of PW1 itself, the document ought to have been filed as it is within their knowledge even when he gave evidence. It is also contended that as per the case originally pleaded by the plaintiff and is also the case of the defendants, both the parties purchased their respective plots on the same day from the common vendor and as admitted by PW1 in his cross-examination, they are immediate neighbours to one another and no property of the owner is left in between their plots, and therefore, any document subsequently executed does not change the factual situation as it was when both of them purchased. He further stated that in view of the fact that the mother of the plaintiff agreed to leave some space for road, it was mentioned in the gift deed of 1st defendant.

17. It is also contended that since the plaintiff has admitted the whole case of the defendants as pleaded in their written statement when he was cross-examined, as there is no other go for the plaintiff, this petition is filed just to drag on the proceedings.

18. No party can be allowed to lead evidence beyond the case pleaded. As can be seen from the plaint, there is no averment regarding any place left by the vendor of both parties in between their plots and there is no allegation that such part of the property is encroached by the defendants. On the other hand, it is also pleaded and the case admitted by PW1 that both are immediate neighbours and the boundaries mentioned in their respective sale deeds is also in the knowledge of other party. Therefore, no purpose would be served by trying to lead evidence beyond their pleading as the same is not permissible. As rightly submitted, if at all the plaintiff wants to file this document at the first instance he could have pleaded and also filed in his evidence earlier since 2nd defendant was brought on record based on the said deed only. There is no substance in the contention that as the defendants failed to lead evidence, it necessitated the plaintiff to file the evidence. As such, this Court does not see any reason to interfere with the order impugned in the revision since it has given valid reasons for dismissing the petition. Hence, this revision petition is liable to be dismissed.

19. In view of the finding of this Court in C.R.P. Nos. 677 and 846 of 2021, there is no need to pass any orders in the other two revision petitions in C.R.P. Nos. 837 of 2021 and 840 of 2021 filed challenging the order of the trial Court refusing to reopen the suit and recall the petitioner and they automatically fail, and are liable for dismissal.

20. Accordingly, all the revision petitions are dismissed.

There shall be no order as to costs.

21. Miscellaneous petitions pending, if any, shall stand closed.