THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA

ORDER:

Heard Sri P.Hari Prasad, learned counsel for the petitioner and Sri I.Ramesh, learned counsel appearing for the respondent.

2. The present Civil Revision Petition is filed under Article 227 of the Constitution of India, against the impugned dismissal Docket Order dated 04.05.2018 passed in I.A.No.99 of 2017 in O.S.No.19 of 2012 on the file of the VII Additional Junior Civil Judge at Warangal.

3. Aggrieved by the same, the present petition is filed by the petitioner seeking for an appointment of Advocate Commissioner for the purpose of noting down the physical features to elicit, in which the Survey number of the suit schedule property and the structure is situated with the help of Mandal Surveyor for better adjudication of the matter.

4. The brief facts of the case are that the petitioner/plaintiff has filed the suit against the respondent/defendant seeking a perpetual injunction and another separate application for another ad-interim injunction contending that the petitioner/plaintiff is the owner and possessor of the agricultural land out of Sy.No.375/1/4 to an extent of Acs.0.20 guntas situated at Palivelpula village, Hanumakonda Mandal, Warangal District.

5. Learned counsel for the petitioner contended that due to the expansion of Warangal town, he obtained the house construction permission from the Gram Panchayat, Palivelpula to construct three rooms of RCC building in 70 Sq. yards of land in southern side of the suit schedule property and bore well was dug and an electricity connection was obtained for the schedule property and contended that the defendant is interfering in the peaceful possession and enjoyment over the suit schedule property and the same was pending. As such, the petitioner herein filed the present application under Order 26 Rule 9 r/w. Section 151 of Civil Procedure Code seeking appointment of the Advocate Commissioner for the above said purpose on the ground that both the parties are claiming that they have constructed an RCC building in our respective plots and now the question is to be decided whether the house construction made by him is situated in Sy.No.375/1/4 or in Sy.No.381, as it was the said reason that the petitioner sought for an appointment of the Advocate Commissioner.

6. The respondent has filed the counter affidavit against the averments made by the petitioner and the learned counsel for the respondent contended that the respondent/defendant is in active possession and enjoyment of the suit schedule property to the knowledge of the petitioner and one and all. After the institution of the suit on his application, the Mandal Surveyor has conducted a survey in the disputed land and fixed boundaries in the presence of the parties along with other witnesses and conducted a Panchanama vide file No. F/585/2012 and held that the house constructed by him is in Sy.No.381(Old) 374 (New), but not in Sy.No.375/1/4 as claimed by the petitioner.

7. Learned counsel for the respondent further contended that having knowledge about the said survey for a false claim is to mislead the Court and to further drag the matter, the petitioner has filed the petition under reply and is a frivolous and vexatious one deserves to be dismissed and prayed to dismiss the petition.

8. Considering the docket order dated 04.05.2018, the learned trial Court have came to the conclusion that the said suit was coming for trial and the petitioner/plaintiff has chance to place the evidence before the Court to prove his claim and further the learned trial Court came to the conclusion that the Advocate Commissioner cannot be appointed to gather the evidence to prove the case of the parties. The parties should prove their case by leading acceptable and independent evidence. Thus burden lies entirely on the plaintiff to bring convincing and cogent evidence on record before the Court and the prayer of the petitioner is to note down the physical features of the suit property in the pr