HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITON No.990 of 2024

ORDER:

This Civil Revision Petition is directed against the order, 11.03.2024, passed by the Additional Senior Civil Judge, Gadwal in I.A.No.401 of 2023 in O.S.No.12 of 2021, whereunder and whereby the application filed under Order XXI Rule 9 CPC praying the Court to an appoint Advocate-Commissioner to visit the suit schedule property and to report about the physical features of Sy.No.431/Paiki situated in the limits of Yerravally X Road, Itikyala Mandal, was allowed.

2. Heard Sri C.H.Jayakrishna, learned counsel for the revision petitioners and Sri Ch.Ravinder, learned counsel for respondents.

3. The revision petitioners are plaintiffs and respondents are defendants in the suit.

4. The brief factual matrix of the case is that the plaintiffs filed the aforesaid suit for declaration of title and also for perpetual injunction in respect of the suit schedule property against the defendants. The defendants entered appearance and filed written statement and Counter Claim and the defendants also filed an application under Order XXI Rule 9 CPC to appoint Advocate- Commissioner to visit the suit schedule property and to report whether the suit schedule property exists in Sy.No.431/Paiki.

5. In the affidavit filed in support of the application, the defendants contended that the plaintiffs are not owners of the suit schedule property forming part of Sy.No.431/Paiki of Yerravally Cross Road, Itikyala Mandal, Jogulamba-Gadwal District; that the suit plots are in fact covered in Sy.No.496/E and the plaintiffs are wrongly showing the survey number as ‘Sy.No.431/Paiki’ and since there is a serious dispute with regard to existence of the said plots in Sy.No.431/Paiki, it is appropriate to appoint an Advocate- Commissioner to visit the suit schedule property and to report actual location of the said plots in Sy.No.431/Paiki.

6. The plaintiffs filed a counter resisting the said application and contended that the said application is filed on false and frivolous grounds. They denied that defendants are in physical possession of Sy.No.496/E and contended that the lands in Sy.No.496/E is no way concerned with the suit schedule property; that the land in Sy.No.496 is affected in road widening undertaken by the National Highway Authority and no land is available in Sy.No.496 after sales and acquisition by the National Highway Authority. It was further averred that there is no need for appointment of Advocate-Commissioner and in fact, appointment of Advocate-Commissioner amounts to collection of evidence and thus, prayed to dismiss the application.

7. The trial Court vide impugned order dated 11.03.2024 allowed the said application and appointed an Advocate- Commissioner for local inspection and to ascertain by survey of lands in Sy.No.431/Paiki and Sy.No.496/E with the help of Mandal Surveyor or any authority from the Department of Survey and Land Records not below the rank of Deputy Director/Additional Director and file his report. While allowing the said application, the trial Court specifically observed that the plaintiffs are claiming that the suit schedule property is situated in Sy.No.431/Paiki, whereas the defendants are claiming that suit schedule property is situated in Sy.No.496/E; and that, in a suit for declaration of title, the burden is always on the plaintiff to succeed on his own case. However, in the present case, the defendants have filed Counter claim, therefore, the burden is equally on both the parties to establish their respective contentions/title and if Advocate- Commissioner is appointed and the disputed land is measured, the things would be clear for better appreciation of the pleadings and the facts asserted by both the parties. Aggrieved by the said order, the present Revision Petition is filed.

8. Learned counsel for the revision petitioners contended that the trial Court erred in allowing the application without considering the issue in proper