IMPORTANT POINT
Commissioner cannot be appointed to find out as to who amongst parties is in possession of property as it is function of Court .

1. This civil revision petition under Article 227 of the Constitution of India by the plaintiff is directed against the order and decretal order dated 02.04.2014 of the learned III Additional District Judge, Ranga Reddy District passed in IA.No.1104 of 2013 in IA.No.918 of 2013 in OS.No.1228 of 2013 filed by the defendants 1,3,4 and 5 under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (‘the Code’, for short) requesting to appoint an Advocate Commissioner to visit the suit schedule properties and note down the physical features of the suit ‘C’ schedule property and the existence of a road-‘C’ schedule property and file a report.

2. I have heard the submissions of the learned counsel for the revision petitioner/plaintiff and the learned counsel for the respondents/defendants 1,3,4 and 5. I have perused the material record.

3. The said defendants in support of their request for appointment of an advocate commissioner inter alia urged, in the affidavit of the 5th defendant, as follows:

The plaintiff brought the suit for partition and allotment of 2/13th share in ABDEF and G schedule properties and for a perpetual injunction restraining the defendants including the present defendants from altering the nature or physical features and causing any obstruction or obstacle or hindrance on the use of the ‘C’ schedule property as a road and for recovery of money. In the said suit, the plaintiff had also filed IA.No.917 of 2013 for grant of a temporary injunction in respect of ‘C’ schedule property. However, there is no road as described in ‘C’ schedule property. Even the police of Pahadisheriff Police Station inspected the land on a complaint of the plaintiff and had closed the said complaint as there was no road as alleged. The plaintiff is trying to create a road by obtaining order from the Court (trial Court). In order to know the existence or otherwise of such road as ‘C’ schedule property in the entire suit schedule property, it is just and necessary to appoint an Advocate Commissioner. Hence, the petition is filed for the purpose mentioned in the petition.

4. The said application was resisted by the plaintiff by filing a counter affidavit inter alia contending as follows:

The material allegations in the affidavit filed in support of the petition are false. The contentions that there is no road as described in the ‘C’ schedule property and that the Police of Pahadisheriff Police Station inspected the land on complaint of the plaintiff and had closed the said complaint as there was no road etcetera are all false. The complaint was never closed. The complaint does not relate to the verification of the existence of the road. The contents of the said complaint have no nexus to the relief sought in the instant application nor are they relevant for deciding the instant application. The plaintiff is trying to create a road is incorrect. It is not just and necessary to appoint an Advocate Commissioner for the purpose sought for by the defendants. The existence or otherwise of the road can be proved by adducing necessary evidence. Appointment of an Advocate Commissioner is neither necessary nor permissible; and the appointment of an Advocate Commissioner for the desired purpose tantamounts to collection of evidence. The petition is devoid of merit and is liable to be dismissed.

5. The Court below by the order impugned had allowed the application and appointed an Advocate Commissioner and directed for entrustment of a warrant to him to execute the warrant in respect of the following works.

1. The Commissioner is directed not to take photographs or video graph the property;

2. The commissioner is directed t draw rough sketch showing the existence of the schedule ‘C’ property;

3. The commissioner is directed not to give his/her opinion;

4. The commissioner is at liberty to take the assistance of the surveyor if necessary;

5. The commissioner fee is fixed at Rs.3,000/- payable by the petitioner directly.’

Aggrieved