IMPORTANT POINT
The appointment of an Advocate Commissioner for property demarcation does not constitute evidence collection if it serves to resolve factual disputes.

ORDER :

(R. Raghunandan Rao, J.)

1. Heard Sri Mahadeva Kanthrigala, learned counsel for the Petitioner.

2. The petitioner herein had filed O.S. No. 183 of 2011 in the Court of the Principal Junior Civil Judge, Kuppam against the respondents herein for grant of permanent injunction against the respondents from interfering with the possession of the petitioner over the suit schedule property consisting of two items. The first item being described in Schedule-A of the suit as an extent of land in Sy. No. 13/3 of Vasanadu Gollapalli Village and item No. 2 being a country tiled house bearing D. No. 3-23 of Vasanadu Gollapalli Village. The said 'B' Schedule being part of the 'A' schedule property.

3. The respondents herein resisted the suit on the ground that the suit schedule property was originally assigned to the mother of the respondents Smt. Santhamma under a D-form patta and that the respondents had constructed two portions of houses and two small shops on the said property and that they are in occupation of the said property after paying house tax. The respondents also contended that the description of the property does not match the property on the ground.

4. The respondents, during the pendency of the suit, had filed I.A. No. 529 of 2023 for appointment of an advocate commissioner to visit the suit schedule property along with the Mandal Surveyor along with revenue records to identify the survey number of the suit schedule property and to note the existing boundaries for the suit schedule property as well as the houses and shops which are existing on the said land. This application was contested by the petitioner on the ground that appointment of an Advocate Commissioner in such circumstances would amount to collection of evidence and the same is beyond the scope of appointment of an Advocate Commissioner.

5. The trial Court after considering the arguments of both sides had allowed the application, by an order dated 22.03.2024, by appointing a learned advocate as the Advocate Commissioner to visit the schedule property along with the Mandal Surveyor to identify the survey of the suit schedule property and to note the existing boundaries of the suit schedule property apart from the existence of the house and shop rooms etc.

6. Aggrieved by the said order, the petitioner has now moved the present Civil Revision petition.

7. Sri Mahadeva Kanthrigala, learned counsel for the petitioner relying upon a Judgment of a learned single judge of the combined High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Sarala Jain and Others vs. Sangu Gangadhar and Others, 2016 (3)ALD 197, would contend that appointment of an Advocate Commissioner for the purposes set out in the application, would clearly amount to gathering of evidence and the same is prohibited.

8. The learned Single Judge, in the paragraph No. 8, of the above cited judgment had noticed judgments for the proposition that appointment of an Advocate Commissioner for demarcation of property etc., would not amount to collection of evidence and also, in paragraph No. 7, the judgments holding that appointing of an Advocate Commissioner for demarcation of property is nothing but collection of evidence which is not permissible in law. The learned single Judge after noticing these judgments had set out certain guidelines for considering an application for an appointment of an Advocate Commissioner and had held that the appointment of an Advocate Commissioner for fixing boundaries to the property of the respondents, in the case before him, would not serve any purpose as there was no contention of the petitioner therein that the schedule property was not demarcated and that the trial Court had not looked into the pleadings of the parties. Consequently, the appointment of an Advocate Commissioner in that case was set aside.

9. In the present case, the contention of the petitioner is that the petitioner is in possession of the land set out in the sched