Appointment of an Advocate-Commissioner under Order XXVI Rule 9 is justified for local investigation when property existence is disputed, aiding effective adjudication without merely collecting evidence.

ORDER :

Laxmi Narayana Alishetty, J.

This Civil Revision Petition is filed assailing the order dated 09.02.2024 in I.A.No.1356 of 2023 in O.S.No.614 of 2018 passed by the XVII Additional Senior civil Judge, City Civil Court, Hyderabad.

2. Heard Sri H.Venugopal, learned senior counsel representing Sri N.Mukund Reddy, learned counsel for petitioners on record, and Sri Mirza Saifulla Baig, learned counsel for respondents.

3. The petitioners herein are the defendant Nos.18, 22, 23, 24 25; respondent no.1 herein is the plaintiff No.1 before the trial Court. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.

4. Brief facts relevant for adjudication of the present Civil Revision Petition are that plaintiff filed the suit for partition, declaration and separate possession against the defendants in respect of property bearing Municipal Nos.16-11-16/M/1, 16-11- 16M/2, 16-11-16/M/3, 16-11-16/1A and 16-11-16/1/B admeasuring 1193 square yards in Sy.No.58 of Prashant Nagar, Teegalguda, Moosarambagh, Malakpet, Hyderabad, which is referred as schedule ‘A’ property and the property admeasuring 478 square yards in Sy.No.58 of Prashant Nagar, Teegalguda, Moosrambagh, Malakpet, Hyderabad, which is referred as schedule ‘B’ property.

5. The specific case of the plaintiff is that schedule properties belong to their grandfather Nellutla Veeraiah & Kummari Veeraiah, who died in the year 1959, leaving behind two wives and four sons, i.e., plaintiff and defendant Nos.2 to 4. Defendant Nos.5 to 11 are the grandsons and daughters of N.Veeraiah. Plaintiff sought proportionate share in the schedule ‘A’ &’B’ properties i.e., 47.72 square yards in schedule ‘A’ property and 23.9 square yards in schedule ‘B’ property, which were ancestral properties.

6. The defendant Nos.13, 18, 20 to 22 and 25 filed the written statement denying plaint averments and have taken a specific stand that the schedule ‘B’ property is not in existence. It is further contended that question of partition of the schedule properties does not arise inasmuch as they are not available for the partition; that schedule ‘A’ property was sold by defendant No.1 along with his mother and brothers in the year 1984 and 1985, by the time, the plaintiff was aged about 8 or 9 years and therefore, it is highly improbable that he would have confronted about the sales made by his father, i.e., defendant No.1, along with others.

7. During the pendency of the suit, plaintiff filed I.A.No.1356 of 2023 under XXVI Rule 9 read with Section 151 of CPC praying the trial Court to appoint an Advocate-Commissioner to note down the physical features existing over schedule ‘B’ property, which is adjacent to schedule ‘A’ property i.e., on the Northern side of schedule ‘A’ property. In the said application, plaintiff had stated that defendant Nos.13, 14, 18 and 20 to 27 filed written statement contending that schedule ‘B’ property is not in existence at all, however, the schedule ‘B’ property is in existence and in the month of February, 2022, during pendency of the suit, the defendants started construction over schedule ‘A’ & ‘B’ properties and made shops in part of ‘B’ schedule property. It is contended that the land purchased by defendants comes under schedule ‘A’ property and remaining land on North side is ‘B’ schedule property, however, the defendants are denying the existence of schedule ‘B’ property. Therefore, the defendants prayed to appoint Advocate-Commissioner to note down the physical features existing over the schedule ‘B’ property for proper adjudication of the matter.

8. In the said application, the defendant