The appointment of an advocate commissioner for local investigation in a civil suit must not amount to granting a pre-trial decree and cannot be used to collect evidence on behalf of any party.

Heard learned counsel for the petitioner and learned counsel for the State.

2. This application under Article 227 of the Constitution of the India has been filed by the petitioner for setting aside the order dated 28.11.2018 passed by the learned Sub-Judge-VII, Aurangabad, in Title Suit No. 287 of 2014 whereby the application dated 26.04.2018 filed on behalf of the plaintiff/petitioner for appointment of survey knowing advocate commissioner has been dismissed.

3. Learned counsel for the petitioner submitted that the impugned order dated 28.11.2018 is perverse, vindictive and against the law. He submitted that the nature of dispute is such that appointment of an advocate commissioner is a must for conducting local investigation for the purpose of elucidating the matter in dispute.

4. On the other hand, learned counsel for the State submitted that there is no illegality in the order impugned passed by the court below. According to him, the court below has rightly rejected the application filed by the plaintiff-petitioner on the premise that the advocate commissioner cannot be appointed to collect evidence on behalf of the parties.

5. I have heard learned counsel for the parties and perused the record.

6. The petitioner is plaintiff in Title Suit No. 287 of 2014 filed for declaration of title, confirmation of possession over the suit land and further for grant of ad-interim injunction restraining the defendants from interfering with the peaceful possession of the plaintiff-petitioner over the suit land. He filed an application without quoting any provision of law on 26.04.2018 and prayed to appoint survey knowing advocate commissioner for scientific measurement of the suit land. The contention of the petitioner in the court below was that it has specifically been averred in para 5 of the plaint that the land of Plot No. 2480 and 2481 and Khata no. 122 is amalgamated with the undisputed land of plot no. 40 and 41 under Khata no. 11 lying at village-Gobaspur. In order to establish the factum of amalgamation, a report of survey knowing advocate commissioner is required.

7. In the rejoinder filed against the said petition, it was submitted on behalf of the defendants that the petition of the plaintiff is vexatious and has been filed to collect evidence in the case. It has also been submitted that on the point of amalgamation no documentary evidence has been filed by the plaintiff in the case. According to the defendants, the nature and character of the land is aam gairmazarua.

8. After hearing the parties, the court below observed as under:-

“Both the sides have been heard. Perused the case record and consider the submissions made on behalf of both the sides. The present suit has been filed by the plaintiff on the pleading that his father Ram Suchit Singh took settlement of entire land of survey plot no. 2480 and 2481 from the ex-landlord on payment of Nazarana in the year 1944 and 1945 and Parwanas were issued to the settlee. Ram Suchit Singh, the father of the plaintiffs amalgamated the land of plot no. 2480 and 2481 under khata 122 with his undisputed land of plot no. 40 and 41 under khata 11 and carved out several subplots raising high ridges. It is also stated in plaint that defendants are claiming that they had purchased the land of plot no. 2480 from Balram Tiwari under a registered sale deed no. 1522 dated 25.11.1968 who took settlement from ex-landlady Sayeeda Khatoon and Deoki Yadav and Bhuneshwra Yadav took settlement of land measuring 40 decimal of plot no. 2481 from the ex-landlord and they are in possession. Thus the question involved in the suit is whether plaintiff has valid right title and possession over the suit land on the basis of said settlement Parwanas. The pleading of the plaintiffs that he is in possession over the suit land since the time of his father and his father had amalgamated the lands with other plots and made subplots in the said land is a fact required to be proved by the plaintiff and it is set