THE HONOURABLE SRI JUSTICE N.TUKARAMJI CIVIL REVISION PETITION No.2253 OF 2025

ORDER:

This revision is directed against the propriety of the order dated 20.09.2024 passed in I.A. No. 618 of 2023 in O.S. No. 344 of 2014 by the Court of the II Additional Junior Civil Judge-cum-II Additional Judicial Magistrate of First Class, Karimnagar.

2. Heard Mr. Sureddy Priyanka, learned Counsel for the petitioner and Mr. P. Sajan Kumar, learned Counsel for respondents.

3. The revision petitioner is the plaintiff in the suit, who instituted the proceedings seeking a declaration and perpetual injunction in respect of the suit schedule property (hereinafter referred to as “the subject property”). During the pendency of the proceedings, the petitioner filed an application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short “CPC”), seeking appointment of an Advocate Commissioner in respect of the subject property, namely, a house site adjacent to House No. 2-99/A, admeasuring 347.33 square yards, situated at Asifnagar Village, Karimnagar Mandal and District. The purpose of the appointment sought was to direct the Commissioner to note down the physical features of the subject property, to take photographs thereof, and to measure the same with the assistance of a qualified Surveyor. The trial Court, upon considering the merits of the application, declined the relief sought and passed the impugned order. Aggrieved thereby, the present revision petition has been filed.

4.1. Learned counsel for the petitioner submits that the trial Court failed to appreciate that there existed a genuine dispute regarding the physical features of the subject property. To establish that the respondents were not fully aware of such physical features, the appointment of an Advocate Commissioner was necessary and warranted. She further contends that, since the suit is a comprehensive action for both declaration of title and perpetual injunction, the appointment of an Advocate Commissioner would not cause any prejudice to the interests of the respondents.

4.2. In addition pleaded that, the material gathered by the Advocate Commissioner would be confined to recording the existing physical features and measurements, which does not amount to collecting evidence. It is argued that the trial Court failed to consider the settled legal position that an Advocate Commissioner may be appointed in cases where a dispute exists regarding physical features. Therefore, the reasons recorded by the trial Court for declining the relief are untenable, warranting interference by this Court.

4.3. In support, learned counsel for the petitioner placed reliance on the judgments of this Court rendered in Civil Revision Petition No. 3266 of 2007, dated 01.04.2011, and Civil Revision Petition No. 3760 of 2014, dated 11.11.2024 and asserted that, in those cases, it was held that where disputes exist regarding boundaries, physical features, or allegations of encroachment, mere recitals in documents may not reveal the true state of affairs, and therefore, appointment of an Advocate Commissioner to measure the land with the assistance of a Surveyor may be necessary. It was further held that there is no legal bar to the appointment of a Commissioner even in a suit for injunction, for the purpose of recording physical features and possession over the property. On this basis, counsel prays for allowing the present petition.

5. Per contra, learned counsel for the respondents/defendants contends that the father of the revision petitioner, who had previously instituted a suit for perpetual injunction in respect of the very same property, had suffered dismissal of the said suit, both at the trial stage and in appeal. It is further submitted that even the Second Appeal, vide S.A. No. 202 of 2020, is presently pending before this Court. Against that backdrop, the petitioner’s father, by creating nominal registered gift settlement deeds, has sought to foist the present suit through his son, the r