HON’BLE SRI JUSTICE K. LAKSHMAN CIVIL REVISION PETITION No.2234 OF 2025

ORAL ORDER

Heard Mr. Venkat Reddy Kodumury, learned counsel for the petitioner and Mr. Shiva Prasad Bhimani, learned counsel representing Mr. Bethi Venkateswarlu, learned counsel for the respondent.

2. This revision is filed under Section - 227 of the Constitution of India challenging the order dated 04.04.2025 in I.A. No.260 of 2024 in O.S. No.1158 of 2022 passed by learned Principal Junior Civil Judge at Karimnagar.

3. Vide the aforesaid order, learned trial Court closed the aforesaid I.A. 260 of 2024 holding that as the case posted for trial without prejudice to rights of both parties.

4. The petitioner herein is the plaintiff, while respondent herein is the defendant in the aforesaid suit O.S. No.1158 of 2022. The petitioner filed the aforesaid suit for declaration of title and recovery of possession. During pendency of the said suit, the petitioner herein filed an interlocutory application vide I.A. No.260 of 2024 under Order - XXVI, Rule - 9 of CPC seeking appointment of Advocate Commissioner to measure and fix the boundaries of suit schedule property as per the schedule shown in the partition deed bearing document No.1186 of 2008, dated 25.02.2008 and to note down the physical features of the suit area with the help of licensed Surveyor or Mandal Surveyor for better adjudication of suit claim on the following grounds:

i. He has filed the main suit for declaration of title and recovery of possession of suit schedule area of 11.06 square yards. The dimensions of the said area is 2’x29’ (towards east to west) + 1’x41’.6” (towards north to south), bearing Plot No.9 (Part) out of Survey No.1315, situated at Vavilalapalli, Karimnagar.

ii. Originally, his mother purchased 304 square yards and her title was declared by virtue of declaratory decree dated 20.04.1990 in O.S. No.363 of 1990 passed by learned District Munsiff, Karimnagar.

iii. After the death of his mother, himself and the respondent partitioned the same through registered partition deed bearing document No.1187 of 2008, dated 25.02.2008.

iv. By virtue of the said partition deed, he acquired 138 square yards and respondent acquired 138 square yards and an area of

27.73 square yards kept for passage.

v. The respondent taking advantage of absence of the petitioner in Karimnagar Town started construction illegally by encroaching into the suit area.

vi. On coming to know the same, he and his family members approached and questioned the respondent about such encroachment, but the respondent foisted a criminal case against him and his family members and thereby he filed the subject suit.

vii. To prove the encroachment of his area by the respondent, it is essential to appoint an advocate commissioner for the aforesaid purpose.

5. The aforesaid application was opposed by the respondent herein contending that though their mother purchased an extent of 304 square yards of land from her Vendor, on the spot only 298 square yards of land is available. He is in possession of 135 square yards of land in which he made construction of a house, whereas the petitioner is in possession of 135.67 square yards of land. The area of 27.33 square yards of land is left for his passage which is 6 feet lane as he constructed house back side of plot of the petitioner for free ingress and egress to 20 feet road. Six Feet land was given as per the partition deed dated 25.02.2008. Now, the petitioner is claiming title over the said 6 feet lane by way of filing the aforesaid suit. It is settled law that an Advocate Commissioner cannot be appointed for collection of evidence.

6. Vide docket order 04.04.2025, learned trial Court closed the said I.A. by observing thus:

“As case posted for trial without prejudice to rights of both parties IA closed.”

7. Challenging the said order, the petitioner filed the present revision contending that the petitioner filed the aforesaid I.A. No.260 of 2024 to measure the dimension and also to note down the phy