Appointment of an Advocate Commissioner is warranted under Order XXVI Rule 9 CPC for clarifying boundaries, even in the presence of other pending legal proceedings.

ORDER :

C.V. BHASKAR REDDY, J.

The present Civil Revision Petition is filed aggrieved by the order, dated 12.12.2024, passed in I.A.No.266 of 2023 in O.S.No.213 of 2021 by the I Additional Junior Civil Judge, Vikarabad, Vikarabad District (for short, ‘the trial Court’).

2. The plaintiff/respondent No.1 herein has instituted a suit vide O.S.No.213 of 2021 on the file of the Additional Junior Civil Judge, Vikarabad, against the defendants seeking declaration of title and recovery of possession, mandatory injunction for dismantling the illegal structures raised by defendant No.1 in the suit schedule property and for grant of Mesne profits pertaining to suit property. During pendency of the suit, the plaintiff has filed I.A.No.266 of 2023 under Order XXVI Rule 9 of CPC seeking to appoint an Advocate Commissioner for fixation of boundaries for suit schedule property. After considering the rival submissions, the trial Court allowed the said application vide order dated 12.12.2024 appointing an Advocate Commissioner. Aggrieved by the same, the petitioner herein/respondent No.1 has filed the present Civil Revision Petition.

3. The case of the petitioner in I.A.No.266 of 2023/plaintiff is that since there is encroachment on the suit schedule property, he filed I.A.No.266 of 2023 seeking to appoint an Advocate Commissioner to note down the physical features with specific boundaries so as to enable him to claim Mesne profits pertaining to suit property. The respondents filed counter affidavit denying the allegations mentioned in the petition filed by the plaintiff and submitted that the plaintiff prior to institution of the suit, has filed a writ petition vide W.P.No.20760 of 2018 in respect of the suit schedule property and the same is pending for adjudication. It is further stated that the plaintiff has also filed a land grabbing case vide LGOP No.21 of 2018 before the Principal District Judge and the same is also pending. Further, the plaintiff also filed a criminal case No.480 of 2015 on the file of this Court and in view of pendency of the above cases, the respondents prayed to dismiss the IA filed by the plaintiff as not maintainable. The Trial Court has carefully examined the contentions put forth by the parties and allowed the I.A.No.266 of 2023 vide impugned order dated 12.12.2024 observing that to examine whether the plaintiff is entitled for Mesne Profits or not, it is necessary to know the nature and classification of the lands which would have effect while deciding the suit.

4. Considered the submissions of the learned counsel for the respective parties and perused the record.

5. The learned counsel for the revision petitioner submitted that appointment of an Advocate Commissioner is warranted only in cases where there exists a genuine dispute with regard to fixation of boundaries. It is contended that in a suit for recovery of possession, such appointment is not necessary, particularly when a survey and demarcation of the subject property has already been conducted by the Mandal Surveyor. It is further submitted that the subject I.A was filed by the plaintiff merely with an intention to collect evidence, which is impermissible under law. It is argued that the trial Court failed to consider these aspects while passing the impugned order, and hence, the order dated 12.12.2024 in I.A.No.266 of 2023 in O.S.No.213 of 2021 is liable to be set aside.

6. As per Order XXVI Rule 9 of the Code of Civil Procedure, in any suit where the Court considers that a local investigation is necessary or appropriate for elucidating any matter in dispute, or for ascertaining