IMPORTANT POINT
Appointment of Advocate Commissioner – Where there is controversy as to identification, location or measurement of land, local investigation should be done.

JUDGMENT

The present civil revision petition is preferred by the petitioner aggrieved by the order dated 01.06.2016 passed in E.A.No.491 of 2015 in E.P.No.267 of 2008 in O.S No.193 of 1991 on the file of the Principal Junior Civil Judge, Anantapuramu (for short “the trial Court”).

2. The impugned application has been filed by the petitioner before the trial Court under Order 26 Rule 9 of CPC seeking appointment of Advocate Commissioner to note down the structures of E.P. schedule property and to bring all relevant documents concerning to it with the assistance of Mandal Surveyor.

3. Brief facts of the case are that earlier the petitioner filed E.A.No.491 of 2015 claiming right and title over the schedule mentioned property as he is absolute owner of the said property and the said property actually assigned by the Government in her favour and relevant records also mutated in that regard but the respondent who are nothing to do with the property and never in possession and enjoyment of property contended that the said property is a private land and made to litigate the same and for that purpose there is a requirement to appoint an Advocate Commissioner to make local inspection of the schedule property with the assistance of Mandal Surveyor so as to bring truth into the light and hence the petitioner filed the impugned I.A before the trial Court seeking appointment of advocate commissioner and the same was dismissed with costs. Aggrieved by the same the present civil revision petition came to be filed.

4. Heard Sri N. Aswartha Narayana, learned counsel appearing for the petitioner and Sri R. Dheeraj Singh, learned counsel appearing for the respondents.

5. On hearing, learned counsel for the petitioner submits that the order of the trial Court is contrary to law and the same is violated by the material irregularities in exercise of its jurisdiction. He further submits that the trial Court ought to have seen that the subject land is Government land and assigned in favour of the petitioner, therefore the trial Court can appoint the Advocate Commissioner to note down subject land along with boundaries, when the respondents claiming very same land under the guise of E.P proceedings. He further submits the trial Court ought to have seen that, no right should be affected to either of the parties, if the Advocate commissioner visited the schedule property and made inspection and if file final report. He further submits that the trial Court ought to have seen that the subject land is Government land, it can be revealed during the course of inspection since after inspection if boundaries are noted around the land, the Court below can come to just conclusion with proper adjudication of the issue and also ought to have seen that the respondents nowhere contended that any prejudice would be caused if the Advocate Commissioner visited and note down the physical features except contending that with regard to previous litigation, therefore no prejudice would be caused to either of the parties if the Advocate Commissioner is appointed.

6. On the other hand, learned counsel for the respondents submits that there is no requirement to appoint an Advocate Commissioner at this stage and this Court and Appellate Courts have clearly dealt with regarding th schedule property and declare that the said property is a private property as such the petition under Order 26 Rule 9 CPC cannot be maintainable and the trial Court has rightly dismissed the application of the petitioner and hence prayed to dismiss the present CRP. 7. As seen from the material available on record, it is observed that, it is crystal clear that the present impugned petition was filed claiming that the schedule property is a Government land and the same is assigned to the petitioner. but it can be proved by way of documentary proof since the petitioner herself stated in the affidavit and petition that her name was mutated in the Revenue records and assignment also made in favour of the p