HON’BLE SRI JUSTICE B.PRAKASH RAO S.A.No.294 of 1996 AND CC.137 of 2003 COMMON JUDGMENT: Since both the cases arise in respect of the same proceedings, they are taken up together for disposal. The appellant since died represented through her Legal Representatives, is the unsuccessful plaintiff, who filed this appeal under Section 100 of the Code of Civil Procedure inter alia seeking to assail the correctness of the Judgment and Decree in A.S.No.11/1992, dated 24-2- 1996, on the file of the II Additional District Judge at Nellore allowing the appeal at the instance of the defendants 1 to 5 and setting aside the judgment and decree granted in her favour in a suit for declaration and perpetual injunction in respect of the suit schedule property as per the Judgment and Decree in O.S.704 of 1987, dated 16-12-1991 on the file of 1st Additional District Munsif at Nellore. Subsequent to filing of the above appeal, this Court granted interim injunction in CMP.8400/1996 by order dated 13-9-1996 restraining the respondents from interfering with the petitioners’ peaceful possession and enjoyment of the suit schedule property. Contempt Case is filed complaining that in violation of the said orders, the respondents taking advantage of the plaintiff’s death, made construction in the schedule property and thereby violated the same, hence, are liable for contempt. Coming back to the facts of the case, the case of the plaintiff since deceased briefly was that she has purchased 10 Ankanams of land in pursuance of a registered sale deed dated 7-1-1945, which is marked as Ex.A.1 and constructed a house on the Northern side leaving 18 inches of space on the North East to facilitate washing and further carried repairs. She also constructed a kitchen on the Southern side of her site leaving again 18 inches space on the East and South. Thus, she is in possession and enjoyment of the same. However, the neighbors on the East and South the plaintiff’s premises reconstructed their house lawfully encroaching into her site in spite of the objections raised. On a complaint to the police, there was a mediation and ultimately it was found that there was an encroachment and the plaintiff on measuring the site came to know that he is in possession of 9 ½ ankanams and thereby there was settlement, and yet as the alleged acts on the part of the defendants continued, having regard to the specific allegations made in the plaint, she sought for declaration and injunction. Denying the claim of the plaintiff in respect of the suit schedule property, the defendant pleaded that there is no encroachment and in fact it is in absolute possession and enjoyment of the defendants alone. Thereupon, a private complaint is filed before the II Additional Judicial Magistrate of First Class, Nellore in CC.256 of 1986, which ended in acquittal, and therefore, there are no merits. On these and other allegations as contained in both the pleadings, the trial Court framed the issues and proceeded with the trial wherein the plaintiffs examined PWs.1 to 3 and marked Exs.A.1 to A.4. On behalf of the defendants DWs.1 to 4 were examined and Exs.B.1 and B.2 were marked. On consideration of the evidence and material on record, the Trial Court decreed the suit mainly placing reliance on the recital of Ex.A.1 about 10 ankanams of land purchased by the plaintiff and held that the plaintiff has got title thereby entitled for the injunction. However, in regard to the claim for damages, the trial Court did not accede to the same. Aggrieved thereby, the defendants have filed appeal in A.S.No.11 of 1992 before the lower appellate Court wherein the appellant/plaintiff also filed Cross-Objections in respect of rejection of the claim for damages. The lower appellate Court upon hearing both sides and on re-appreciation of the evidence and material on record did not believe the version of the plaintiff nor the Commissioner’s report, especially, in regard to the possession of the plaintiff in or over 10 ankanams. It was held that the Commissioner did not give total extent of site, which is under occupation of the plaintiff nor it does not disclose as to what was the actual site, which was in her occupation. The measurement of total site was also not given in the Commissioner’s report. Therefore, except Ex.A.1 there is nothing on record to show that the plaintiff is in possession of the extent which she claimed. Even the mediators’ mediation in Ex.A.2 was not believed on the ground that signatures of Sub-Inspector or mediators were not taken, and the mediators are no more, and therefore, the same has not been proved. Thus, by doubting both, the claim of the plaintiff in possession over the extent alleged to have been purchased under Ex.A.1 and the subsequent mediation, the appellate Court reversed the decree of the trial Court. However, in respect of the claim for damages, the cross-objections filed by the appellant plaintiff were also negatived. Hence this appeal. During the course of the arguments, it is noticed that the respondents though served were not represented by any counsel. Hence, this Court appointed Ms.Sneha Bhogle, the learned counsel as amicus curiae to assist the Court. On consideration of the entire submissions from both sides and on perusal of the material on record, it is seen that a narrow question that arises for consideration is as to whether the plaintiff is entitled for the declaration of injunction as sought for including for damages. On a total appraisal of the case, it is seen that there is no serious dispute in regard to the claim as set up on behalf of the plaintiff under Ex.A.1 wherein it dates back to 7-1-1995, which is a registered document and the total extent of 10 ankanams. No doubt, there is no proper Commissioner’s exercise in making the local investigation, either for locally identifying the suit land or the land as claimed from both sides. There is no explanation coming forth as to why such exercise was not properly done. Be that as it may, especially in the absence of a specific plea of total area source thereof by the defendants, and on the face of it there is no challenge to the document which is a registered one under Ex.A.1 dated 7-1-1945, necessarily it cannot be said that the plaintiff has no title in respect of the land purchased there-under. The question therefore would be as to its location. The extent purchased under the said document is not in dispute. Therefore, it has to be properly located and identified. The record does not disclose as to whether the Commissioner has taken up any work memos from both sides in coming forth with their case on the site extent, etc. Unless and until such work memos are taken, mere visit of commissioner in view of any warrant is a futile exercise. The lower appellate Court was not right in making several observations in regard to the lapses on the part of the Commissioner and the report made by him, unless and until it is established that in spite of such force as mentioned above in making necessary suggestions and filing of work memos, there is a failure on the part of the Commissioner nor there is any practical difficulty on the site. Therefore, the lower appellate Court was not right in rejecting the claim of the appellant/plaintiff on its face value holding that the plaintiff has failed to establish her possession or enjoyment. In view of the aforesaid circumstances, necessarily it follows that the matter has to be re-examined, re-tried and fresh efforts are to be made for local inspection by appointing a fresh Commissioner, with all formalities and procedures by giving opportunities to both sides, by filing work memos with all particulars, details etc., in respect of the properties claimed either on title or possession etc. Accordingly, the Second Appeal is allowed. The matter is remanded back to the Court below for fresh disposal, in accordance with law, after following the aforesaid directions to make the local inspection. It is also made clear that subsequent to the report of the Commissioner, it is always open to both sides to lead fresh evidence, if they, chose to do so. Coming to the contempt case, no doubt there has been order in favour of the appellant/plaintiff herein pending this appeal and there is a complaint that in spite of such order the respondents have made constructions. This aspect also as well can be gone into and re- appreciated by the Court below at the time of the final disposal of the appeal. Therefore leaving open to the parties to establish their case in a proper perspective and the same will be considered and disposed of, it cannot be said that more so in the absence of the parties there is any contempt as such. This finding is only for the purpose of the present proceedings, but would not in any way come against the final disposal by the trial Court, on merits and in accordance with law. No costs. __________________ (B.PRAKASH RAO,J) Date:1-04-2011 grk