IMPORTANT POINT
The burden of proof in a suit for perpetual injunction is on the plaintiff to establish lawful title and possession over the property, and the appointment of an Advocate commissioner may not advance the purpose of adjudicating the real controversy in the suit.

Headnote:
APPOINTMENT OF ADVOCATE COMMISSIONER - PERPETUAL INJUNCTION - [Article 227 of the Constitution of India] - [O.S.No.247/2009] - [Summary: The court dismissed the petition seeking appointment of an Advocate commissioner for localization of the suit property and measuring with the assistance of licensed Surveyor and noting down its physical features, as it found that such appointment would not assist in deciding the true controversy of whether the plaintiff has title and lawful possession over the entire extent of the property. The court relied on jurisprudence on the appointment of Advocate commissioners in suits for injunction and concluded that in this case, the burden of proof was on the plaintiff to establish lawful title and possession, and the appointment of a commissioner would not advance the purpose of adjudicating the real controversy in the suit.]
Fact of the Case:
The petitioner sought appointment of an Advocate commissioner for localization of the suit property and measuring with the assistance of licensed Surveyor and noting down its physical features in a suit for perpetual injunction over an extent of land. The trial Court dismissed the petition, holding that such appointment would not assist in deciding the true controversy of whether the plaintiff has title and lawful possession over the entire extent of the property.
Finding of the Court:
The court found that the burden of proof was on the plaintiff to establish lawful title and possession over the property, and the appointment of a commissioner would not advance the purpose of adjudicating the real controversy in the suit.
Issues: The main issue was whether the appointment of an Advocate commissioner for localization of the suit property and noting down its physical features would assist the trial Court in adjudicating the real controversy of the plaintiff's title and lawful possession over the property.
Ratio Decidendi: The court relied on jurisprudence on the appointment of Advocate commissioners in suits for injunction and concluded that in this case, the burden of proof was on the plaintiff to establish lawful title and possession, and the appointment of a commissioner would not advance the purpose of adjudicating the real controversy in the suit.
Final Decision: The C.R.P. was dismissed, and no costs were awarded. The interlocutory applications pending, if any, shall stand closed.

JUDGMENT

U.DURGA PRASAD RAO, J. - The challenge in this C.R.P. filed under Article 227 of the Constitution of India by the petitioner/plaintiff is to the order in I.A.No.766/2015 in O.S.No.247/2009 passed by learned I Additional Senior Civil Judge, Visakhapatnam dismissing the petition filed by the petitioner seeking appointment of Advocate commissioner to localize the suit property and measure with the assistance of licensed Surveyor and note down its physical features.

2. The petitioner is plaintiff in O.S.No.247/2009 seeking permanent injunction in respect of Ac.0.93 cents of land in Sy.No.294/2. The 1st respondent claims to be in possession of Ac.0.23 cents out of said Ac.0.93 cents in Sy.No.294/2. The trial is under way.

3. At this juncture, the petitioner filed I.A.No.766/2015 seeking appointment of Advocate commissioner. The trial Court having observed that as the suit is essentially one for permanent injunction wherein the plaintiff has to establish his lawful possession, appointing Advocate commissioner for localization of suit property and measuring the same with the help of Surveyor and noting down its physical features will not in any way assist the Court for effective disposal of the suit, rather the appointment of the Advocate commissioner tantamounts to collection of evidence, dismissed the petition.

4. Heard learned counsel for petitioner Sri P.Rajasekhar and Sri Bodduluri Madhu, learned counsel for respondents.

5. In his effort to convince the Court showing the justification for appointment of an Advocate commissioner, learned counsel for petitioner Sri P.Rajasekhar would argue that according to the petitioner, he has been in effective possession and enjoyment of the suit property comprising Ac.0.93 cents of land wherein he raised two sheds for his watchmen and constructed a compound wall around the suit property, whereas, the respondents contend to have purchased Ac.0.23 cents out of the said Ac.0.93 cents and constructed a boundary wall around their property which is strongly opposed by the petitioner, if an Advocate commissioner is appointed to localize and noting down the physical features of suit property, the trial Court will be clearly informed as to whether one boundary wall is in existence around entire suit property or there are two boundary walls and that crucial fact will help the trial Court to adjudicate the suit in a proper and effective manner.

6. Relying upon the decision in Maria Margarida Sequria Fernades and Others vs. Erasmo Jack de Sequeria (Dead) through L.R.s.,AIR 2012 SC 1727. learned counsel would argue, as is held by the Hon'ble Apex Court, truth is the glowing star in judicial process and to arrive at the absolute truth and to uphold the saying 'Satyameva Jayate', the Court must follow the modern jurisprudence and try to find out the truth. He would thus submit that in such endeavor, the Court can appoint the commissioner for elucidating the truth. He placed reliance on the decision Mohammed Jaffer Abdul Quadeer Qureshi vs. Aziz-urRehman Qureshi,(2016) 3 ALT 477.

7. Per contra, learned counsel for respondents while supporting the impugned order would submit that as the suit is primarily for perpetual injunction, the burden of proof is on the plaintiff to establish his title and lawful possession over the suit schedule property and it is immaterial whether there existed one or two compound walls in the suit schedule property and even if one or two compound walls are existed thereon, during the localization, the commissioner cannot gather evidence as to who constructed those compound walls. Gathering of such information and incorporating in the report would amount to collection of evidence which otherwise is the duty of the plaintiff to place in the form of evidence for appreciation of the Court. He thus prayed to dismiss the C.R.P.

8. The point for consideration is whether there are merits in the C.R.P. to allow and appoint an Advocate commissioner for localization of the suit propert

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