ORDER :

This Civil Revision Petition is filed by the petitioners against the Order and decree, dated 22.10.2020 passed in I.A.No.608 of 2020 in O.S.No.187 of 2020 on the file of the Court of Principal Junior Civil Judge, Chilakaluripet.

2. Petitioner herein is the 3rd respondent and the respondents herein are the plaintiff and the respondents No.2 and 3 in O.S No.187 of 2020 on the file of Principal Junior Civil Judge, Chilakaluripet, which was filed for specific performance of agreement of sale deed dated 19.5.2010 and consequentially for permanent injunction. During pendency of the said suit, the plaintiff has filed I.A.No.608 of 2020 under Order 26 Rule 9 of CPC to appoint an advocate commissioner to note down the physical features available at petition schedule property.

3. For the sake of convenience, the parties are referred to as they were arrayed in the said I.A. before the Court below.

4. Brief facts of the case are that the 1st respondent being owner of the petition schedule property executed an agreement of sale dated 19.5.2010 by delivering the possession of petition schedule property with an undertaking to execute registered sale deed in favour of the petitioner. Accordingly, the petitioner got possession over the said property on 19.05.2010 itself, later the 1st respondent not turned up to execute registered sale deed in spite of repeated demands. Therefore, the petitioner filed the suit for specific performance of agreement dated 19.5.2010 and to restrain respondents No.2 and 3 who are children of 1st respondent. Since the suit is at initial stage, the respondents after receiving summons and notices highhandedly started construction in the petition schedule property and trying to change the physical features in the said petition schedule property in order to defeat the claim of the petitioner. Therefore he sought to appoint an advocate commissioner to note down the physical features.

5. Respondent No.2 remained ex parte. Respondent No.3 filed counter and the same has been adopted by the 1st respondent and contended that the application which is filed by the petitioner is intended to collection of evidence at initial stage and the grounds stated are all created as well as the petitioner is not at all in possession of the petition schedule property at any point of time thereby the petition is not maintainable and hence prayed to dismiss the petition.

6. On consideration of submissions of both the counsels and upon perusing the entire material available on record, the Court below allowed the I.A.No.608 of 2020 and appointed an advocate commissioner to note down the physical features and take photographs as and when necessary and prepare a rough sketch.

7. Heard Mr. Thota Rama Koteswara Rao, learned counsel appearing for the petitioner and Mr. Sricharan Thelaprolu, learned counsel appearing for the respondents.. Perused the material available on record.

8. Learned counsel for the petitioner herein has relied upon a judgment of this Court reported in Bongu Ramulu and another vs. Gudur Narender Reddy1, wherein it was held that “in a suit for perpetual injunction, the Court has to adjudicate as to who is in actual possession of the suit property as on the date of institution of the suit on the basis of oral and documentary evidence adduced by the parties and the said function cannot be entrusted to the Advocate Commissioner.”

But the facts of the above case are not applicable to the present set of facts of the case as the suit is filed in the present case only for specific performance of agreement of sale but not for perpetual injunction.

9. On the other hand learned counsel for the 1st respondent/petitioner in the above mentioned I.A has relied upon a decision of High Court of Judicature at Hyderabad reported in SALLA ESWARAMMA Vs C.

SUBBA REDDY2, wherein at para-8, it was held that :

1 1998(3) ALD 657

2 2008 Law Suit (AP) 699

The manner of executing the commissions is dealt with in Rules 10 to 22 of Order 26 CPC. The perusal of Or