A trial court cannot decide the final entitlement or the merits of the final relief, such as a permanent injunction, while adjudicating an interlocutory application for the appointment of an Advocate-Commissioner to identify physical features of a property.

ORDER

The present Civil Revision Petition is filed by the petitioner/ plaintiff under Article 227 of the Constitution of India, aggrieved by the order, dated 24.10.2025, passed in I.A.No.97 of 2025 in O.S.No.95 of 2022 on the file of the Senior Civil Judge, Mulugu, wherein and whereunder the application filed under Order XXVI Rule 9 of C.P.C., seeking appointment of an Advocate-Commissioner to measure the plaint schedule property as well as the adjoining property of respondent/defendant No.2, was dismissed.

2. Brief facts of the case are that the plaintiff, who is the petitioner herein, filed O.S.No.95 of 2022 (old No.178 of 2018 on the file of the II Additional Senior Civil Judge, Warangal) seeking permanent injunction against the respondents, their agents, servants, workmen and assignees from interfering or invading the suit land and along with the said suit, he also filed I.A.No.275 of 2018 seeking for grant of ad interim injunction. The learned II Additional Senior Civil Judge, Warangal, vide order, dated 29.03.2018 in I.A.No.275 of 2018, has granted ad interim injunction directing the respondents/defendants not to interfere with the petition schedule property till filing of the counter and the said interim order is being extended from time to time. While things stood thus, taking advantage of the petitioner’s absence, respondent No.2 herein has illegally occupied his land and constructed a house therein. Aggrieved thereby, the petitioner filed an application under Order XXXIX Rule 2-A of C.P.C. against respondent No.2 for committing breach of the injunction order. As respondent No.2 has constructed a house by occupying the petitioner’s land, the petitioner/plaintiff filed an application seeking appointment of an Advocate-Commissioner to measure the plaint schedule property as well as the adjoining property of respondent No.2.

3. To the said petition, respondent Nos.1 and 2 have filed a counter stating that the disputed fact cannot be referred to Commissioner and measuring the land is nothing but an attempt to create third party evidence in favour of the petitioner. It is further stated that respondent No.2 had constructed the house after obtaining necessary permission and by suppressing all the material facts, the petitioner filed the aforesaid petition. The petitioner did not file any document to prove his ownership or possession of the alleged encroached area. Therefore, the appointment of advocate-commissioner is not necessary.

4. After considering the rival submissions made, the trial Court has dismissed the said I.A. Challenging the same, the present Civil Revision Petition is filed.

5. Heard Sri Rahul Gaikward, learned counsel representing Mr. Iiyas Shareef, learned counsel for the petitioner. Perused the material placed on record.

6. Learned counsel for the petitioner would submit that the trial Court erred in observing at paragraph No.11 of the impugned order that “one cannot be granted injunction to protect his possession which he does not have”. This finding amounts to a pre-trial of decree by deciding the final entitlement of the plaintiff at the interlocutory stage of appointing an Advocate Commissioner and the learned trial Court has exceeded its jurisdiction. The purpose of the commission is mere identification of the physical features of the property and not to adjudicate the final relief of injunction and therefore, prayed to allow this Civil Revision Petition.

7. The trial Court