HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.2829 OF 2023

ORDER:

The order dated 30.08.2023 passed in IA.No.521 of 2023 in OS.No.2841 of 2022 on the file of Principal Junior Civil Judge, Warangal is under challenge in the Revision Petition.

2. Heard Sri J.Venkateshwar Reddy, learned counsel for revision petitioner, and Sri Dadi Radha Krishna, learned counsel for the respondents.

3. The petitioner is defendant and the respondents are plaintiffs in the suit. For convenience, hereinafter the parties will be referred to as they are arrayed in the suit.

4. In nut-shell, the facts of the case, required for adjudication of the present Revision Petition are that plaintiff filed the aforesaid suit for perpetual injunction against the defendant in respect of the suit schedule property. The defendant entered appearance and filed written statement, issues were framed, trial commenced and when the matter was coming up for cross-examination of defendant, the defendant filed an application under Order XXVI Rule 1 CPC vide IA.No.1156 of 2018 for appointment of Advocate-Commissioner to inspect and note down the physical features of the suit schedule property.

5. In the affidavit filed in support of the application, the defendant averred that there is a dispute with regard to identity of the suit schedule property and that the plaintiffs are claiming agricultural land to an extent of Acs.3.30 guntas in Sy.No.171/F Village; that PW-2 also admitted the same in his cross-examination and therefore, it is necessary to get recorded the physical features of the suit schedule property with that of the property belonging to the defendant through Advocate-Commissioner and the same would be helpful for proper adjudication of the suit.

6. The plaintiffs filed counter resisting the said application and contended that the land in Sy.No.171/F is only an extent of Ac.1.00, therefore, the claim of the defendant that Acs.3.30 in the above Survey number is false and baseless; and that the defendant is trying to grab the suit schedule property of the plaintiffs basing on false and fabricated documents. The plaintiffs further averred that the application is not maintainable and it is not the duty of the Court to find out the identity of the property and that the evidence on both sides has been completed and the matter is coming up for final adjudication, at this stage, the application was filed which amounts to collection of evidence through the Advocate- Commissioner and as such, the application is untenable and the same is liable to be rejected.

7. The trial Court by an order dated 05.03.2019 allowed the said application and appointed Advocate-Commissioner to note down the physical features of the suit schedule property and further directed him to prepare rough sketch and take photographs and answer the work memos filed by both parties in consonance with the directions given and file report before the Court. Consequent thereupon, the warrant issued by the trial Court was executed by the Advocate-Commissioner on 29.03.2022 and he filed report before the trial Court along with rough sketch and photographs. Subsequent thereto, the plaintiffs filed an application vide IA.No.521 of 2023 to re-direct the Advocate-Commissioner to answer the work memo filed by the plaintiffs and to take assistance of Surveyor to demarcate the suit schedule property and the alleged land of the defendant.

8. In the affidavit filed in support of the said application , the plaintiffs averred that when the notice was issued by the Advocate-

Commissioner for execution of warrant issued by the Court, the plaintiffs have filed work memo to take assistance of Surveyor for fixation of survey number stones for which the commission work was adjourned and as per his advise, the plaintiffs have paid requisite fee on 04.11.2022, however, surprisingly the Advocate- Commissioner has filed report without taking assistance of Surveyor and plaintiffs have filed their objection to the re