IMPORTANT POINT
The Advocate Commissioner's report is non-adjudicatory and serves only to assist the court, not to bind it in decision-making.

ORDER :

M.G. Priyadarsini, J.

Aggrieved by the order dated 04.12.2023 in I.A.No.396 of 2023 in O.S.No.59 of 2023 (hereinafter will be referred as ‘impugned order’) passed by the learned Junior Civil Judge, Kalwakurthy, the defendant filed the present Civil Revision Petition to set aside the impugned order.

2. The brief facts of the case are that the plaintiff filed O.S.No.59 of 2023 before the learned Junior Civil Judge, Kalwakurthy for declaration of title, recovery of possession and perpetual injunction in respect of the suit schedule property. Apart from the suit, the plaintiff also filed I.A.No.396 of 2023 under Order XXVI Rule 9 of the Code of Civil Procedure to appoint an Advocate Commissioner for local inspection, conducting survey, demarcation and measuring the lands in Sy.No.395/EE and 360/AA of Marchala Village, Kalwakurthy Mandal, Nagarkurnool owned and possessed the by both the parties respectively with reference to their title deeds. The defendant filed detailed counter opposing the said application, however, the learned Junior Civil Judge allowed the said application on 04.12.2023. Aggrieved by the same, the defendant has preferred the present Civil Revision Petition to set aside the impugned order.

3. Heard both sides and perused the record including the grounds of revision.

4. As seen from the record, after receipt of summons, the defendant filed written statement along with counter claim, wherein he disputed the identity and location of the suit schedule land. The claim of the defendant is that he is the owner and possessor of land admeasuring Ac.01.31 guntas in Sy.No.360/AA with specific boundaries in Marchala Village, Kalwakurthy Mandal, Nagar Kurnool District having purchased the same from Dokka Balamaisaiah in the year 2013 and that he is intending to construct holy shrine in his land. It is the specific contention of the plaintiff that he has been fighting for his land in sy.No.395/EE for the past five years by approaching several authorities and courts but the defendant is making illegal construction in the name of a Dargah in the suit schedule property stating to the be land purchased by him vide document No.10607/2013 dated 09.10.2013, however, in fact the said property belongs to the plaintiff. The defendant admitted in his counter that the plaintiff is the owner of land admeasuring Ac.1.14 guntas in Sy.No.395/EE of Marcharla Village but he is denying that plaintiff is the owner of the suit schedule property.

5. As seen from the rival contentions, it appears that though the lands of respective parties are in separate survey numbers i.e., 395/EE and 360/AA, both the parties are claiming the same property. Thus, there is a dispute with regard to identification of the property. The trial Court has acceded to the request of the plaintiff to appoint advocate commissioner only on the ground that the Court is expected to consider all the evidence on record, before it finally decides the suit. From the above observation, an inference can be drawn that the trial Court is of the view that Advocate Commissioner report forms part of the evidence.

6. It is to be seen that though report of Advocate-Commissioner forms part of the records, it is not binding on Court and in fact advocate commissioner report is to be appreciated along with other evidence available on record in a given case. In M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit, Pachama, District Sehore and Others v. M/s. Modi Transport Service, 2022 Live Law (SC) 471 the Honourable Apex Court observed as under :

“33. Order XXVI Rule 9 of the Code gives wide powers to the court to appoint a commissioner to make local investigations which may be requisite or proper for elucidating any matter in dispute, ascertaining the market value of any property, account of mesne profit or damages or annual net profits. Under Order XXVI Rule 11, the court has the power to issue a commission in a suit, in which examination of adjustment of accounts is necessary, to a person as