The appointment of an Advocate Commissioner is unnecessary when sufficient evidence exists to determine the facts in a partition suit.

ORDER :

1. This Civil Revision Petition is filed invoking the provisions of Article 227 of the Constitution of India, aggrieved by the orders dated 03.07.2024 passed by the Senior Civil Judge, Kamareddy in I.A.No.66 of 2023 in O.S. No.7 of 2015.

2. Revision petitioner herein is the plaintiff and respondent No.1 is defendant No.22 in the suit. For the sake of convenience, the parties herein are referred to as they were arrayed in the suit in O.S.No.7 of 2015 before the Court below.

3. Brief facts of the case:

3.1 Plaintiff filed suit in O.S. No.7 of 2015 on the file of Senior Civil Judge, Kamareddy seeking partition and separate possession in respect of his share in the suit schedule property i.e. Ac.3-03 guntas in Sy.No.748 situated at Kamareddy, stating that he is successor of his great grandfather late Salveru Papaiah, who is original pattadar of the schedule property, and he is in joint possession along with defendant Nos.1 to 15 and he requested the defendant Nos.1 to 15 to divide the suit schedule property and allot his 1/15th share out of 1/5th share, when they refused the same, he filed the above said suit.

3.2 In the said suit, defendant No.22 filed written statement denying the averments made by the plaintiff inter alia contending that the plaintiff nor defendant Nos.1 to 15 are not in possession of the suit schedule property and the same is not vacant land and it is in exclusive possession of the respective purchasers i.e. defendant Nos.16 to 46, who purchased the same from the defendant No.21, and the said property consisting several pakka RCC buildings constructed by defendant Nos.16 to 46 and plaintiff filed the suit in collusion with defendant Nos.1 to 15 basing upon fabricated document i.e., kasra pahani 1954-55 without disclosing correct facts.

3.3 In the said suit, defendant No.22 filed an application in I.A.No.66 of 2023 seeking appointment of an Advocate Commissioner to make a local inspection of the suit schedule property and its vicinity and to note down the physical features of the structures existing in the said property, on the ground that the plaintiff filed suit dishonestly stating that the suit schedule property is vacant land and the same is in joint possession of the plaintiff and defendant Nos.1 to 15, and with a view to abuse the process of law. The suit schedule property is not vacant land and the same is covered with RCC buildings constructed by defendant Nos.16 to 46 and others. The Court below allowed the above said application by its order dated 03.07.2024.

4. Heard Sri D.Madhava Rao, learned counsel, representing Sri D.Raghavendar Rao, learned counsel for the petitioner/plaintiff and Sri T.S.Murthy, learned counsel for respondent No.1/defendant No.22.

5.1 Learned counsel for the petitioner contended that, the nature of the suit filed by the plaintiff is for partition and separate possession and allotment of his 1/15^th share out of 1/5^th share in the suit schedule property and the entire burden is upon the plaintiff to prove that the suit schedule property is in joint possession of the plaintiff and defendant Nos.1 to 15 and the said property is vacant land.

5.2 He further contended that when the suit is posted for defendants’ evidence, defendant No.22 filed application seeking appointment of an Advocate-Commissioner to make a local inspection of the suit schedule property and note down the physical features of the structures existing in the said property with the help of local Surveyor. The Court below without properly considering the contentions of the plaintiff erroneously allowed the application and appointed an Advocate Commissioner through impugned order dated 03.07.2024 and the same is contrary to law.

5.3 Learned counsel further contended that the parties must prove their case, whether the suit schedule property is vacant land or covered with structures, by producing the necessary evidence rather than through the appointment