The main legal point established is that the appointment of an Advocate Commissioner to determine possession and physical features of the suit property should be considered at a later stage if required.

JUDGMENT

(Prayer: Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, against the orders passed in I.A.No. 1996 of 2016 in O.S.No. 214 of 2012, dated 31.07.2017 on the file of the I Additional Chief Judge, City Civil Court, at Secunderabad.)

1. The Civil Revision Petition has been filed by the plaintiff in O.S.No. 10 of 2016 now pending on the file of the District Munsif cum Judicial Magistrate, Parangipettai, aggrieved by the order in I.A.No. 145 of 2017 dated 18.04.2017. The said application was filed under Order 26 Rule 9 CPC for appointment of an Advocate Commissioner. After counter had been filed by the respondents, the said application came to be dismissed necessitating the plaintiff to file the present Revision Petition.

2. O.S.No. 10 of 2016 had been filed by the revision petitioner/plaintiff Seenu @ Ramadass against 20 defendants. The 20th defendant is the Commissioner, Parangipettai Village Panchayat in Bhuvanagiti.

3. The suit had been filed seeking a declaration that there is a charge over the suit property for carrying out charity, which should be carried out, by anybody who is in possession and enjoyment of the properties and for a declaration that the plaintiff, as a legal heir of Rama Padayachi is actually in possession and enjoyment of the suit property and in the alternate for a declaration that a decree passed in O.S.No. 297 of  1995, is not binding on the legal heirs of Rama Padayachi including the plaintiff and the defendant is not entitled for possession of the suit property and injunction seeking protection of the possession of the plaintiff and for costs.

4. The entire issue arises with respect to the suit property which had been described in the plaint as vacant land measuring 4.77 acres in R.S.No. 98/3A, B.Mutlur Village, Bhuvanagiri Taluk. It is stated that the forefathers of the plaintiffs have been carrying on a charity in the suit property in accordance with a partition of the year 1934. The plaintiff claims that he is in possession and enjoyment of the suit property and is doing the charity for which there is a charge over the said property. He claims that he had been doing the charity for the past 20 years. He also claims that the said charity was created by a Judgment by this Court in S.A.No. 1166 of 1991 and in S.A.No. 877 of 1998. The plaintiff was not a party in an earlier suit in O.S.No. 297 of 1995. He filed this suit for a declaration that the Judgment and decree in the said suit is not binding on him.

5. A written statement filed joining issue with the plaintiff by the first defendant.

6. The plaintiff had then filed I.A.No. 145 of 2017 seeking appointment of an Advocate Commissioner.

7. In the affidavit filed in support of the said application, among various other aspects, the plaintiff had also stated that the Advocate Commissioner would be required to determine possession of the suit property and also to note down the physical features of the suit property. It must be noted that the particular land had been donated by the grandfather of the plaintiff to the Revenue Department and they have also put that to use by putting up a fair price shop. There are also tenants and there is also temple in the said place.

8. This application came up for consideration before the District Munsif cum Judicial Magistrate, Parangipettai on 18.04.2017 and it was held that an Advocate Commissioner cannot be appointed to determine possession of a particular area of land and that would amount to gathering of evidence and that the said fact must be established only by the plaintiff and the said application was dismissed. Questioning that order, the plaintiff is in revision before this Court.

9. The learned counsel for the revision petitioner however insisted that though in the affidavit, it had been stated that possession of the land is central issue, the main reason advanced by the appellant for appointment of an Advocate Commissioner was to note down the physical features and for that par