IMPORTANT POINT
The court emphasized that the appointment of an Advocate Commissioner and summoning witnesses are at the court's discretion, and the burden of proof rests with the plaintiff.

ORDER :

K. Manmadha Rao, J.

Both the Civil Revision Petitions are filed against the orders dated 27.06.2024 passed in I.A.No160 of 2024 and I.A.No.161 of 2024 in O.S.No.174 of 2015 by the Court of Civil Judge (Senior Division), Kadiri.

2. As the issue involved in both the civil revision petitions is one and the same, these matters are taken up together for disposal by this Common Order.

3. The petitioner herein is the defendant No.2; 1st respondent herein is the plaintiff and the respondents No.2 to 4 are the defendants No.1, 3 and 4 in O.S.No.174 of 2015, which was filed before the Senior Civil Judge, Kadiri (for short “the trial Court”) for declaration of title and for grant of permanent injunction with regard to the plaint schedule property. The evidence was closed and the suit was posted for arguments. During pendency of the same, the petitioner herein filed interlocutory applications before the trial Court vide I.A No. 160 of 2024 in O.S No.174 of 2015 under Order 26 Rule 9 of CPC seeking to appoint an Advocate Commissioner to note down the existing physical features of the suit schedule property and also filed I.A No. 161 of 2024 in O.S No.174 of 2015 under Order 16 Rule 14 of CPC seeking to issue summons to D3 i.e., Tahsildar, Kadiri to give evidence as a Court witness. The same were dismissed by the trial Court vide separate orders dated 27.06.2024. Aggrieved by the same, the present civil revision petitions came to be filed.

4. Heard Sri T.D. Phani Kumar, learned counsel appearing for the petitioner and Smt S. Ayesha Azma, learned counsel appearing for the respondents.

5. On hearing, learned counsel for the petitioner submits that the petitioner herein filed I.A.No.160 of 2024 under Order 26 Rule 9 of CPC seeking to appoint an Advocate Commissioner to note down the physical features of the schedule property. He submits that the petitioner herein has been in possession and enjoyment of the suit property and erected fencing around the suit property and that the petitioner raised mango trees, chikoo trees, coconut trees, jackfruit trees, Neem trees by fixing bore-well and obtained motor connection to the bore-well and all the trees are of 15 years old. He further submits that the 1st respondent/plaintiff is not in possession and enjoyment of the said property and is no way concerned to the suit property. The 1st respondent/plaintiff did not whisper about the existing of fruit bearing trees in the suit property. If the Advocate Commissioner is appointed to note down the physical features of the suit property by making local inspection, the truth will come out. Learned counsel for the petitioner further submits that the 3rd respondent/D3 has filed his written statement before the trial Court along with documents in the above suit, but during trial, he reported no evidence on his behalf which disclose collusion between him and the plaintiffs. The evidence of D3 is a material to prove the case of the petitioner herein. Therefore, the petitioner herein filed I.A No.161 of 2024 before the trial Court under Order 26 Rule 14 of CPC to issue summons to D3 i.e, Tahsildar, Kadiri. However, both the I.As were dismissed by the trial Court, which is contrary to law and weight of evidence and probabilities of case.

6. Learned counsel for the petitioner submits that the trial Court ought to have appreciated that the 1st respondent/plaintiff did not explain the nature of suit schedule property, thus appointment of an Advocate Commissioner for localization of suit schedule property would essential for adjudicating the issue in controversy. He submits that the trial Court ought to have appreciated that the evidence of 2nd defendant was closed on 21.3.2024 and the matter was adjourned twice on 28.3.2024 and 15.4.2024 for evidence of D3 and D4. The evidence of D3 and D4 was closed on 15.4.2024. The petitioner filed the present application on 19.04.2024 and that the trial Court ought to have appreciated that the extent of land assigned to the petiti