Points of Law : No contentions were pleaded in affidavit accompanying I.A. and it was improper for Appellate Judge to appoint Advocate Commissioner - This would certainly amount to improper exercise of jurisdiction and misdirection in law which would occasion failure of justice.

ORDER :

The present Revision Petition is filed against the Order dated 28.10.2021 passed in I.A.No.4 of 2020 in A.S.No.23 of 2018 on the file of the Court of the Senior Civil Judge, Atmakur, Kurnool District.

2. Heard Mr.K.Siva Rama Krishna, learned counsel for the petitioner. Despite service of notice, none entered appearance on behalf of the respondent.

3. One Kommineni Rama Kotaiah, herein after referred to as the plaintiff filed O.S.No.201 of 2010 on the file of the Court of the Junior Civil Judge, Atmakur, Kurnool District. He filed the said suit seeking Permanent Injunction restraining the respondent/defendant and her men etc., from in any way encroaching or interfering with his peaceful possession and from objecting him from placing fencing to the plaint schedule site shown as “ABCD” in the plaint plan. He purchased the plaint schedule site along with another site shown as “GHIJ” in the plaint plan under Registered Sale Deed bearing Document No.1850/78 dated 21.07.1978 and he was in peaceful possession and enjoyment of the same.

4. In the plaint, it was averred that he raised a “kottam” in “GHIJ” site and the plaint schedule site is kept as open place to tether the cattle and also to store the grass etc., It was further averred that towards the south of the plaint schedule site, the husband of the defendant purchased an extent of Ac.0.22 cents of site and also another site of an extent of Ac.0.07 cents shown as “CDEF” and “IJKL” respectively in the plaint plan. It is also stated that the respondent/defendant is trying to encroach into the site of the plaintiff shown in the plaint schedule and when he tried to lay fencing to the “ABCD” site, the respondent/defendant raised objection. While stating that the respondent/defendant has no right to object from placing the fencing to the site of the plaintiff to an extent of Ac.0.22 cents shown in the plaint schedule, a decree for Permanent Injunction and other reliefs were sought for.

5. The respondent/defendant filed a Written Statement denying the allegations of encroachment and alleged obstruction to the laying of fence by the plaintiff. In the Written Statement it was admitted that the plaintiff purchased the plaint schedule extent of Ac.0.22 cents and that the husband of the respondent/defendant purchased Ac.0.29 cents on the south of the plaint schedule site. But, the plaintiff by showing the wrong extent is trying to encroach into the site of the defendant.

6. During pendency of the suit, the plaintiff died and his wife, 2nd petitioner herein was brought on record vide Order dated 11.06.2015 passed in I.A.No.135 of 2015.

7. The 2nd petitioner/2nd plaintiff was examined as P.W.1, examined P.Ws 2 and 3 in support of her case and got marked Exs.A.1 and A.2 i.e., Plaint plan and Certified copy of Sale Deed dated 21.07.1978 respectively. On behalf of the respondent/defendant D.Ws 1 and 2 were examined and Ex.B.1 Registered Sale Deed dated 21.07.1978 was marked.

8. The learned Trial Judge by Judgment dated 22.12.2017 dismissed the suit. Against the said Judgment, the 2nd petitioner/2nd plaintiff carried the matter by way of appeal i.e., A.S.No.23 of 2018 on the file of the Court of the Senior Civil Judge, Atmakur, Kurnool District. During pendency of the appeal, the 2nd petitioner/appellant filed I.A.No.4 of 2020 under Order XXVI, Rule 9 CPC R/w Section 151 CPC seeking to appoint an Advocate Commissioner to inspect the suit locality with the assistance of the Mandal Surveyor, Amtakur to check the measurements of the suit schedule site and surrounding sites including the defendant/respondent’s site, as per the registered document of the plaintiff’s in document No.1850/1978 and to take photographs, draw a plan and file report. The said application was opposed by the respondent/defendant by filing a counter. The Appellate Court after considering the rival submissions, vide Order dated 28.10.2021, dismissed the said application. Aggrieved by the same, the present Revision Petition came t