HONOURABLE SRI JUSTICE B. VIJAYSEN REDDY CIVIL REVISION PETITION No.4176 OF 2024

ORDER :

The petitioners herein are defendants and the respondents herein are plaintiffs in O.S. No.1 of 2023 on the file of the learned Principal District Judge, Narayanpet (for short 'trial Court') and both the parties are referred to as arrayed in the suit.

2. O.S. No.1 of 2023 was filed by the plaintiffs seeking perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiffs in respect of the land admeasuring Ac.0-24 guntas in Survey No.280, situated at Makthal Village and Municipality, Makthal Mandal, Narayanpet District. I.A. No.290 of 2024 in O.S. No.1 of 2023 was filed by the defendants seeking the following relief:

‘to appoint an advocate commissioner to note down the physical features including existence of structures by taking

video and photographs of the suit schedule property’

Counter was filed by the plaintiffs opposing the said application. Order dated 12.12.2024 was passed by the trial Court dismissing the said

application, which is challenged in this revision petition.

3. It is stated in the affidavit filed in support of application in I.A. No.290 of 2024 that defendant No.l is the owner and possessor of Ac.0-20 guntas in Survey No.280/A/A, situated at Makthal Village and Mandal, Narayanpet District having purchased the same under registered sale deed bearing document No.1987 of 2022 from its lawful owner and pattedar by name Ms. Bommanpad Satyamma. The plaintiffs filed vexatious suit against the defendants claiming to be in possession of the suit schedule property wherein they have alleged that they have constructed five rooms and other structures. The plaintiffs have created documents laying false claim over the suit schedule property. Since there is confusion as to the identity and existence of the suit schedule property which the plaintiffs are corroborating with the property of the defendants, it is necessary to appoint an advocate commissioner to note down the physical features and boundaries of the suit schedule property.

4. The plaintiffs filed counter to the application in I.A. No.290 of 2024 contending that there is no necessity for appointment of an advocate commissioner for the purpose stated by the defendants. Since it is already known that there are two tin sheet rooms in the suit schedule property which is admitted in the judgment and decree passed in O.S. No.29 of 1991 and the defendants therein were directed to remove the rooms. That instead of removing the rooms in the suit schedule property, the defendants preferred appeal in A.S. No.3 of 2005 in the Court of the learned District Judge, Mahabubnagar, which was dismissed. Thereafter, the defendants preferred second appeal in S.A. No.1160 of 2006 before the High Court which is pending. Since, the plaintiffs admitted in O.S. No.1 of 2023 that there is existence of rooms in the suit schedule property, there is no necessity for appointing an advocate commissioner for noting down the physical features and boundaries of the suit schedule property.

5. The trial Court, by the order dated 12.12.2024 held that advocate commissioner cannot be appointed as the application in I.A. No.290 of 2024 was filed at the fag end of the suit. That in the earlier round of litigation in O.S. No.29 of 1991, it was held that the structures are existing in the suit schedule property. The trial Court also noted that it is settled principle of law an advocate commissioner is not competent to take evidence on the point of possession nor the Court is competent to act upon the evidence taken by the commissioner and the parties must prove their case by way of evidence. If the Court wants, it may appoint advocate commissioner in case any issue or matter in dispute requires any clarification.

6. Mr. S. Hari Haran, learned Senior Counsel, appearing for Mr. A. Narasimha Rao, learned counsel for the petitioners (defendants therein), submitted that t