An appellate court may not appoint an Advocate Commissioner under Order 26 Rule 9 CPC without a clear foundation, and trial courts must mandatorily mark documents in interlocutory proceedings to establish a prima facie case.

ORDER:

Heard Mr. Gummala Bhasker Reddy, learned counsel for the petitioners and Mr. N. Hari Prasad, learned counsel appearing for respondent Nos.1 and 2.

2. The present Civil Revision Petition is filed challenging the order dated 21.10.2024 passed in I.A.No.726 of 2023 in CMA No.4 of 2023 passed by the Judge, Family Court – cum - IV Additional District and Sessions Judge, at Karimnagar.

FACTS:-

3. The petitioners herein filed a suit in O.S.No.36 of 2021 against the respondents 1 and 2 herein/defendants 1 and 2 to declare the plaintiffs as owners of the suit schedule property and also for perpetual injunction. They also sought to declare the documents bearing No.1481 of 2020 and 150 of 2021 both dated 24.11.2020 as null and void and to direct the defendant Nos.3 and 4, enter the name of the plaintiffs as owners and possessors of the suit schedule property in revenue record and issue pattadar passbooks by deleting the name of any person entered in the revenue records over the suit schedule property.

4. Along with the said suit, the plaintiffs have also filed as Interlocutory Application vide I.A.No.105 of 2021 under Order 39 Rules 1 and 2 of CPC to grant temporary injunction restraining the defendants 1 and 2 from raising any construction and not to change the physical features of the suit schedule property till disposal of the main suit. Vide order dated 06.12.2022, learned trial Court allowed the said application granting temporary injunction in favour of the petitioners/plaintiffs restraining the defendants 1 and 2 from raising any constructions, not to change physical features of the petition schedule property till disposal of the main suit.

5. Feeling aggrieved by the said order, respondent Nos.1 and 2/defendant Nos.1 and 2 preferred an appeal vide CMA No.4 of 2023. During pendency of the said appeal, respondent Nos.1 and 2 herein filed interlocutory application vide I.A.No.726 of 2023 in CMA No.4 of 2023 under Order 26 rule 9 of CPC to appoint an Advocate Commissioner to note down the physical features and boundaries of the suit schedule property on the following grounds:-

i. They have purchased the suit schedule property from original owner i.e. Ajit Singh takur s/o. Kishan Singh under registered sale deed bearing document No.148 and 150 of 2020 both dated 24.11.2020 within the boundaries specified in the registered sale deeds.

ii. By showing wrong boundaries to the suit land, the plaintiffs are claiming possession and ownership over the suit land. Thus, there is dispute with regard to the boundaries of the suit land.

iii. To establish that the suit land is in their physical possession, it is necessary to appoint an Advocate Commissioner to note down the physical features of the suit schedule land and to fix up boundaries.

iv. Plaintiffs contended that the defendants 1 and 2 are in possession of the subject property and therefore, they sought to restrain defendants 1 and 2 from raising any construction and change physical features of the suit schedule property.

v. Though respondents 1 and 2 herein/defendants 1 and 2 filed counter opposing the said interlocutory application, vide order dated 06.12.2022, the trial Court allowed the said interlocutory application granting temporary injunction in favour of the plaintiffs restraining the defendant Nos.1 and 2 from raising any construction, not to change the physical features of the petition schedule property till disposal of the main suit.

6. The petitioners herein/plaintiffs filed counter