THE HONOURABLE SMT. JUSTICE JUVVADI SRIDEVI CIVIL REVISION PETITION No.3926 of 2024

O R D E R

This Civil Revision Petition is filed by the petitioner-plaintiff seeking to quash the proceedings against him in O.S.No.41 of 2017 on the file of Junior Civil Judge, Jadcherla.

2. Heard Sri L.Preetham Reddy, learned counsel for the petitioner-plaintiff and Sri G.Kalyan Chakravarthy for respondents.

Perused the record.

3. Brief facts leading to the filing of the present Civil Revision Petition is that the petitioner/plaintiff has filed the suit for perpetual injunction from alienating the suit schedule property to third parties in view of existence of tombs of his ancestors. Further, when defendant No.1 denied the same, he filed the present petition for appointment of advocate commissioner to note the physical features about the existence of tombs of his ancestors in the suit schedule property.

4. The trial Court held in its order as under:

Since, the suit is for injunction simplicitor, it is for the petitioner to prove about the existence of tombs of his ancestors in the suit schedule property by placing sufficient oral and documentary evidence and cannot seek the assistance of the Court for location of the tombs. Further the respondents took a plea that tombs are not existing in the suit schedule property and in order to grab the suit schedule property the petitioner filed the present petition by misguiding the Court. If the commissioner is appointed, certainly it amounts to gathering of evidence about the existence of the tombs in the suit schedule property. It is well settled law that, commissioner cannot be appointed for noting down the factum of existence of tombs in the suit schedule property. The petitioner has to prove his case by letting in legally acceptable evidence and the report of the commissioner can only aid the court in evaluating the evidence to come to just conclusion of the case. Hence there are no merits in the petition and there is no necessity to appoint advocate commissioner. Challenging the same, the present Civil Revision Petition has been filed.

5. Learned counsel for the petitioner relied upon the grounds raised in the Civil Revision Petition. He further placed reliance upon the order of a coordinate bench in C.R.P.No.1539 of 2024 of this Court along with following judgments in support of his contentions:

1. Haryana Waqf Board v. Shanti Sarup and others, (2008) 8 Supreme Court Cases 671., wherein it was held as –

It is also not in dispute that even before the appellate Court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the

second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.

2. Badana Mutyalu and another v. Palli Appalaraju², wherein it was held as –

2. The petitioners are defendants in the suit. The suit was filed by the respondent for permanent injunction restraining the petitioners from interfering with his peaceful possession and enjoyment of the ‘ABCD’ marked front yard vacant site. Pending suit, IA No. 173 of 2008 was filed by the respondent under Order XXVI Rule 9 CPC praying for appointment of an Advocate Commissioner to take measurements of the property mentioned in the registered sale deed dated 28.2.1963 under which he has purchased the property and to find out whether the ‘ABCD’ plan marked vacant she is part and parcel of the property mentioned in the said registered sale deed or not with the help of a qualified surveyor.

14. In Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad. 33, a dispute had arisen as to whether constructions put up by the 3rd defendant in the suit therein were within his land or whether h