Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Online)(Tel) 40778

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
B.R.Madhusudhan Rao, J
Reddyshetty Srihari – Appellant
Versus
Surineni Chakradhar Rao – Respondent
CRP No.2226 OF 2025

Advocates:
For the Appellants/Petitioners: Thallapally Rajasekhar
For the Respondents: Y.Prasanna Kumar

An Advocate Commissioner cannot be appointed at the threshold of a suit to identify or locate property if such appointment serves to procure evidence that a party is legally required to establish themselves. Such action is a mechanism for evidence gathering, which is impermissible during the early stages of litigation.

Headnote:(A) Civil Procedure Code, 1908 - Order 26 Rule 9 - Constitution of India - Article 227 - Appointment of Advocate Commissioner - Scope for identification of property - Power under Article 227 is limited to ensuring courts act within jurisdiction - Commissioner cannot be appointed at the threshold to gather evidence where the applicant is yet to prove possession, as this amounts to fishing out evidence - If there is no prima facie case of possession, shifting the burden of establishing property location to a Commissioner is not permissible. (Paras 3.2, 8, 18.1, 18.5, 27)

(B) Civil Procedure Code, 1908 - Order 26 Rule 9 - Demarcation versus Identification - Distinction between demarcating boundaries and mere identification/location of land - Appointment of Commissioner for identification is impermissible when the applicant is uncertain about the boundaries of the property and solely seeks to establish possession through such a report. (Paras 26.2, 26.4, 26.5)

Facts of the case:
The petitioners challenged an order permitting the appointment of an Advocate Commissioner for the identification of suit schedule property. The respondent, who claimed title through an unregistered sale deed, sought the Commissioner to locate land in a specific survey number. The lower court allowed the application, despite earlier concurrent findings in injunction proceedings that the claimant was not in physical possession of the property and that the suit schedule land was not definitively located on the ground.

Findings of Court:
The court observed that the lower appellate authority had previously declined interim relief due to the applicant's failure to prove possession and identify the property. The court reiterated that appointing a Commissioner to identify land where ownership and possession are disputed, without the applicant first establishing their case through evidence, essentially forces the court to collect evidence for the party. Such an order is perverse and constitutes an improper exercise of jurisdiction.

Issues: Whether the lower court erred in appointing an Advocate Commissioner at the threshold of the trial for the purpose of identifying suit schedule property in a suit for perpetual injunction when the claimant has failed to prima facie establish possession.

Ratio Decidendi: The appointment of an Advocate Commissioner cannot be used as a fishing expedition to collect evidence regarding possession or identity of land. Where a plaintiff is unable to show prima facie physical possession or clear boundaries in their own title documentation, seeking a Commissioner’s assistance to locate the property is an attempt to substitute the burden of proof, which is impermissible at the initial stage of litigation.

Result: Civil Revision Petition allowed; lower court order set aside.

Table of Content
1. factual background involving ownership disputes, multiple litigations, and prior injunction applications regarding suit schedule land. (Para 1 , 2)

Cases referred:

1. 2013 (4) ALD 347

2. 2006 (4) ALD 675

3. (2015) 2 ALD 206

4. 2022 SCC OnLine TS 3099

5. 2023 6 ALD 614

6. 2023 SCC OnLine TS 2757

7. 2023 SCC OnLine TS 706

8. 2023 1 ALD 165

9. (2008) 8 SCC 671

10. CRP No.2567 of 2022 dated 16.04.2024 of the High Court for the State of Telangana

11. CRP Nos.1111 and 1112 of 2020 dated 22.01.2024 of the High Court for the State of Telangana

12. 2013 SCC OnLine AP 625

13. 2020 SCC OnLine TS 706

14. MANU/MH/0838/2014

15. 2023 (6) ALD 637 (TS)

ORDER

1. The Civil Revision Petition is filed under Article 227 of the Constitution of India assailing the Order passed by the Senior Civil Judge, at Medak in I.A.No.292 of 2022 in OS No.17 of 2023 (Old Suit No.54 of 2021), dated 19.06.2025.

2. Petitioners are the respondents, and the respondent is the petitioner in I.A.No.292 of 2022 filed under Order 26 Rule 9 r/w Section 151 of Civil Procedure Code, 1908 to appoint an Advocate Commissioner for identification of the suit schedule land i.e., Sy.No.125/E3 situated at Gangapur Village of Haveli, Ghanpur Mandal, Medak District.

3.1. Learned counsel for the petitioners-respondents submits that the Court below failed to appreciate the pleadings of the plaint, petition and written statement and misinterpreted the orders of the High Court in CRP No.2136 of 2022. Appointment of Advocate Commissioner to identify the suit schedule property amounts to collection of evidence and the respondent-petitioner purchased the land by way of simple sale deed, which does not disclose any boundaries to the property, the said document is regularised after a period of 12 years, and the appointment of Advocate Commissioner petition is a premature one. Respondent-petitioner is not in possession of the property and identification of the property under Sada bainama is in question. It is pertinent to mention that injunction petition filed by the respondent-petitioner in I.A.No.252 of 2021 seeking ad interim injunction was dismissed on the ground that there is no prima facie case and the respondent-petitioner has carried the matter in Appeal vide CMA.No.1 of 2022 before the Principal District and Sessions Judge at Medak, the same came to be dismissed vide order dated 10.11.2021, against which the respondent-petitioner has preferred CRP No.2136 of 2022 before the High Court which also came to be dismissed on 21.11.2022.

3.2. The Court below ought to have discussed the pleadings of the parties while deciding the application for appointment of Advocate Commissioner instead thereof, has reproduced the part of pleadings and stated that ascertaining the boundaries of the suit land is necessary for proper adjudication, except that there are no other reasons mentioned in the order and the Court below failed to consider that there are multiplicity of litigation created by the respondent-petitioner and his family members only to harass the petitioners-respondents and the High Court in the CRP has clarified that the availability of the suit land can only be settled after the trial. The Court below failed to consider the age of the respondent-petitioner on the date of sada bainama i.e., 28.03.1998, if his age is calculated as per the affidavit he should be 12 years. Hence, the purchasing of the property by minor itself is a question, the transaction itself is doubtful. The Court below failed to see that no document is filed by the respondent-petitioner. The document - 1B (ROR) dated 07.10.2020 reflects the suit land is inherited. However, the respondent-petitioner claims that he has purchased the property. The Court below failed to appreciate the position of law that, if it comes to a conclusion to resolve the controversy involved and unable to decide the matter based on the material evidence on record, if the Advocate Commissioner's assistance is required to resolve the controversy

Click Here to Read the rest of this document

2025 Supreme(Online)(Tel) 40778

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABADB.R.Madhusudhan Rao, JReddyshetty Srihari – AppellantVersusSurineni Chakradhar Rao – RespondentCRP No.2226 OF 2025

Cases Referred (6)

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
B.R.Madhusudhan Rao, J
Reddyshetty Srihari – Appellant
Versus
Surineni Chakradhar Rao – Respondent
CRP No.2226 OF 2025