The appointment of an Advocate Commissioner to fix boundaries during ongoing litigation constitutes impermissible evidence collection under Order 26 Rule 9 of the CPC.

ORDER :

K. LAKSHMAN, J.

Heard Sri Vedula Srinivas, learned Senior Counsel representing Smt. Vedula Chitralekha, learned counsel for the petitioner and Sri Vadlakonda Ravi Kumar Reddy, learned counsel appearing for respondent. Perused the record.

2. This Civil Revision Petition is filed under Article 227 of the Constitution of India, challenging the order, dated 30.10.2024 in I.A.No.705 of 2022 in I.A.No.290 of 2022 in O.S.No.307 of 2022 passed by learned Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Karimnagar.

3. Respondent has filed a suit vide O.S.No.307 of 2022 against the petitioners herein for declaration of the title, perpetual injunction and to declare the registered gift settlement deed bearing document No.3814 of 2022, dated 29.03.2022 and registered gift settlement deed bearing document No.3817 of 2022, dated 29.03.2022 as null and void. Respondent is claiming that he is the absolute owner and possessor of the open plot measuring 152.9 square yards pertaining to part of house bearing door No.805-547/D/2/3/A/1 out of Sy.No.436 situated at Raghavendranagar of Laxminagar locality, Karimnagar Town, Mandal and District. Along with the suit, he has filed an interlocutory application vide I.A.No.290 of 2022 seeking ad-interim injunction. The said application is pending.

4. During pendency of the said suit and the said application, respondent has filed an interlocutory application vide I.A.No.705 of 2022 under Order 26 Rule 9 read with Section 151 C.P.C to appoint an Advocate Commissioner to fix the boundaries in between the land in Sy.Nos.435 and 436 of Karimnagar and locate the suit plot in which survey number the said plot falls through the Deputy Inspector of Survey, Karimnagar Division, enabling the respondent/plaintiff to proceed further in the suit on the following grounds:-

i) Defendants along with their father converted their land in Sy.No.435 of Karimnagar town into residential plots and while converting the same they have formed internal roads in the plots, thereby they have lost some area.

ii) To cover up the lost area in forming roads in Sy.No.435 of Karimnagar, they have illegally made layout by showing some area in Sy.No.436 of Karimnagar as their land in Sy.No.435. As per the said layouts, plot Nos.2 to 5 are located in Sy.No.436 only. But, they are illegally saying that the said plots are located in Sy.No.435 of Karimnagar. But, the plaintiff’s vendor restrained them from fixing the boundaries as plot Nos.2 to 5 and his vendor filed a petition before the Land Survey Department to survey and to fix the boundaries in respect of land in Sy.Nos.435 and 436 of Karimnagar. The Deputy Inspector of Survey, Karimnagar Division visited the disputed area and got surveyed the same and fixed the boundaries between the Sy.Nos.435 and 436 of Karimnagar, under cover of panchanama on 17.08.2021.

iii) It is further contended that as per the survey report, plot Nos.2 to 5 of the petitioners are located in Sy.No.436 of Karimnagar only. Even after the survey, having come to know about the truth, the petitioners herein in collusion with their father brought into existence the registered gift deeds illegally with an intention to occupy the area including suit plot in Sy.No.436 of Karimnagar by saying the area in Sy.No.435 of Karimnagar. In fact, plot Nos.2 and 3 of petitioners are in Sy.No.436. Therefore, to ascertain the said fact and to fix the boundaries in between the land in Sy.Nos.435 and 436, i