THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA CIVIL REVISION PETITION NO.6279 of 2018

ORDER:

This Civil Revision Petition is filed under Article 227 of Constitution of India, being aggrieved by the order passed in I.A.No.1032 of 2017 in O.S.No.1900 of 2010 on the file of Principal Senior Civil Judge, Ranga Reddy District at L.B.Nagar.

2. Heard Ms.P.Vijayalakshmi, learned counsel representing Sri G.Dhananjai, learned counsel for the revision petitioner and Sri Aravind, learned counsel representing Sri S.Venkatachlam, learned counsel for the respondent. The petitioner herein who is defendant in the suit and the respondent herein who is plaintiff in the suit.

3. Brief facts of the case are that the plaintiff herein filed a suit seeking a decree for directing the defendant to vacate and hand over possession of suit schedule property to the plaintiff and other reliefs pending the suit. The petitioner herein filed an application under Order XXVI Rule 9 of Code of Civil Procedure, 1908 vide I.A.No.1032 of 2017 in O.S.No.1900 of 2010, seeking appointment of an Advocate Commissioner to inspect and survey the Suit Schedule Property with the assistance of Government Surveyor. It is contended that the petitioner is the absolute owner and possessor of Plot bearing No.289 and 290 part, admeasuring 150 sq.yards on Sy.Nos.393 and 394 situated at Shivanagar, Kanojiguda Village, Alwal Municipality, R.R.District.

4. The respondent constructed a house in the suit plots vide bearing H.No.30-39/21 in part of Sy.No.400 of Shivanagar, Kanojiguda Village, Alwal Municipality, R.R.District. It is contended that the respondent is an illegal occupant of the suit plot and constructed house in the suit plot covered by Sy.No.393.

5. The learned counsel for the respondent filed counter denying the averments made in the petition and contended that appointment of an Advocate commissioner amounts to collection of evidence, which is not permissible under law. It is also contended that the oral evidence of PW1 and PW2 and the pleadings of the petitioner are unsupported by documents, and the documents relied upon are inadmissible in evidence as they are only notarized documents and not registered as required by law.

6. Having heard both the parties, the learned trial Court have came to a conclusion that, keeping in view of the contention of the respondent that he never encroached the alleged plots of the petitioner, and no prejudice could be caused to the defendant, if an Advocate Commissioner is appointed for inspection and survey of the suit land with the help of Local Surveyor, the application was allowed and an Advocate Commissioner was appointed.

7. Being aggrieved by the same, the present revision is filed contending that the learned Judge failed to consider the pleadings of the plaintiff alleging encroachment by the defendant. It is contended that as it is a simple suit filed by the plaintiff for recovery of possession of the Suit Schedule Property alleging that the plaintiff purchased the plot No.289 and 290 purporting to be an Agreement of Sale and though it is contended that the said dispute the said title of the plaintiff on the ground that it is only notarised document and also contended that the said document is hit by the provision of Registration and Stamp Act and also Transfer of Property Act, and no rights will be accrued to the plaintiff. It is further contended that the learned trial Court ought not to have appointed an Advocate Commissioner though there was no materials placed by the petitioner/plaintiff and it barely amounts to collection of evidence.

8. Heard the learned counsel appearing for both parties.

Upon considering the rival contentions and the material on record, the point that arises for consideration is

1. Whether the Trial Court committed any error in appointing an Advocate Commissioner for inspection, survey, and identification of the suit schedule property?

2. Whether such appointment amounts to collection of evidence?

9. As the petitione