Only in cases where there is a serious dispute regarding identity of the property or boundaries thereof, an Advocate-Commissioner can be appointed even in the suits filed for injunction(See : Haryana Wakf Board Vs. Shanti Sarup and others and Varala Ramachandra Reddy Vs. Mekala Yadi Reddy and others (2010 (4) ALD 198).

HIGH COURT OF ANDHRA PRADESH

TUESDAY ,THE ELEVENTH DAY OF JULY

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

CIVIL REVISION PETITION NO: 1447 OF 2023

Between:

1. C.MAMATHA W/o. Subramanyam, Aged about 36 years, Cultivation,

R/o. Kammavaripalli Village, Nariganipalli Post,

Ramasamudram Mandal, Chittoor District.

...PETITIONER(S)

AND:

1. K.PARVATHAMMA , W/o late K. Reddeppa, Aged about 70 years, Occ.

Agriculture

2. T. Gangadhar, S/o late T. Venkataswamy, Aged about 50 years, Occ.

Agriculture.

3. T. Gangulamma, W/o T. Gangadhar, Aged about 45 years, Occ.

Agriculture.

4. C. Venkataramana, S/o late C. Thimmaiah, Aged about 60 years, Occ.

Agriculture.

5. C. Prameela, W/o C. Venkatramana, Aged about 55 years, Occ.

Agriculture.

6. K. Sekhar , S/o late K. Venkatramana, Aged about 26years, Occ.

Agriculture.

7. K. Chandrakala, W/o late K. Venkatramana,

Aged about 48years, Occ. Agriculture.

8. C. Siva kumar , S/o late C. Venkatramana,

Aged about 28 years, Occ. Agriculture.

All the respondents are the residents of Kammavaripalli Village,

Nariganipalli Post, Ramasamudram Mandal, Chittoor District.

...RESPONDENTS

Counsel for the Petitioner(s): S PARINEETA

Counsel for the Respondents:

The Court made the following: ORDER

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HIGH COURT OF ANDHRA PRADESH

* * * *

CIVIL REVISION PETITION No.1447 OF 2023

Between:

C. Mamatha.

……..Petitioner.

AND

K. Parvathamma and others

.....Respondents

DATE OF JUDGMENT PRONOUNCED:11.07.2023

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters/Journals

Yes/No

3. Whether Your Lordships wish to see the

fair copy of the Judgment?

Yes/No

_________________________

RAVI NATH TILHARI, J

2023:APHC:22271

2

* THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

+ CIVIL REVISION PETITION No.1447 OF 2023

% 11.07.2023

Between:

# C. Mamatha

……..Petitioner.

And

$ K. Parvathamma and others

 .....Respondents

! Counsel for the Petitioner : Ms. S. Parineeta

^ Counsel for the respondents : Nil

< Gist :

> Head Note:

? Cases Referred:

1

2011 SCC OnLine AP 218: (2011) 4 ALD 231

2

. (2011) 4 ALT 541 at para No.10

3

. 2015(2) ALD 206

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THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

CIVIL REVISION PETITION No.1447 OF 2023

JUDGMENT:

1. Heard Ms. S. Parineeta, learned counsel for the petitioner.

2. The plaintiff in the suit has filed this petition under

Article 227 of the Constitution of India. The respondents are

the defendants in the suit.

3. The petitioner filed O.S.No.153 of 2021 in the Court of

Principal Junior Civil Judge, Punganur for permanent

injunction for the plaint schedule property.

4. The 2nd defendant (2nd respondent) filed affidavit

submitting inter alia that the plaint schedule property originally

belonged to his ancestors and the vendor of the plaintiff who

without giving full extents and correct boundaries executed

documents in favour of the plaintiff. The defendants are the coowners and there are houses, grave yard, tombs of their

ancestors but suppressing the same the suit was filed to change

the physical features by getting injunction order. He filed

I.A.No.378 of 2023 and prayed for appointment of an Advocate

Commissioner to note down the physical features as per the

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boundaries of survey numbers with the assistance of Mandal

Surveyor.

5. The plaintiff filed the objection/counter opposing the

appointment of the Advocate Commissioner.

6. The learned Principal Junior Civil Judge by order dated

10.05.2023 allowed I.A.No.378 of 2023 and appointed the

Advocate Commissioner to note down the physical features by

identifying the houses, tombs and other existing features with

the assistance of Mandal Surveyor and such other points raised

at the time of execution of the warrant and file report along with

the sketch and photographs.

7. The plaintiff has filed the present petition challenging the

order dated 10.05.2023.

8. Learned counsel for the petitioner submitted that at the

initial stage of the suit, at the instance of the defendantrespondent No.2, the Commission could not be issued. The

learned trial court committed error in allowing the application.

She placed reliance in Arvind Kumar Agarwal v. Legend

Estates (P) Ltd., Ranga Reddy District, Hyderabad1.

1

2015(2) ALD 206

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9. I have considered the submissions advanced by the

learned counsel for the petitioner and perused the material

available on record.

10. The short point raised for consideration is whether the

Commission could be issued under Order 26 Rule 9 CPC, at the

initial stage of the suit?

11. Order 26 Rule 9 of CPC reads as under:

“9. COMMISSIONS TO MAKE LOCAL

INVESTIGATIONS.

In any suit in which the Court deems a local

investigation to be requisite or proper for the purpose of

elucidating any matter in dispute, or of ascertaining the

market-value of any property, or the amount of any mesne

profits or damages or annual net profits, the Court may

issue a commission to such person as it thinks fit directing

him to make such investigation and to report thereon to

the Court:

Provided that, where the State Government has

made rules as to the persons to whom such commission

shall be issued, the Court shall be bound by such rules.”

12. A bare reading of Order 26 Rule 9 CPC makes it evident

that there is no restriction or bar imposed with respect to the

stage of issuance of Commission.

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13. In any suit in which the court deems a local investigation

to be requisite or proper inter alia, for the purpose of elucidating

any matter in dispute, the Court may issue a commission to

such person as it thinks fit directing him to make such

investigation and to report thereon to the Court. So the

Commission can be issued if in the view of the court, it is so

necessary for elucidating any matter in dispute.

14. The learned civil judge in its order, considered that the

contention of the defendant that the plaintiff suppressed the

existence of grave yard, houses, tombs of the ancestors of the

defendant in the suit schedule property. There were rival

contentions; one that the suit schedule property were not

divided and the other that the plaintiff purchased the suit

schedule property with a specific extents and within a specific

boundaries. There were also rival contention; one denying the

existence of tombs in the suit schedule properties and the other

asserting the existence thereof. In view thereof the learned civil

judge considered it necessary, to elucidate the matter in

dispute, to issue the Commission. The learned civil judge in that

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regard also placed reliance in the case of Shaik Zareena Kasam

vs. Patan Sadab Khan2.

15. In Shaik Zareena Kasam (supra), this Court held that

whenever there is a dispute regarding boundaries or physical

features of the property, the facts have to be physically verified

because recitals of the documents may not reveal the true facts

and measuring of land on the spot by a Surveyor may become

necessary.

16. Para 10 of Shaik Zareena Kasam (supra), is reproduced

as under:

“10. Whenever there is a dispute regarding boundaries or

physical features of the property or any allegation of

encroachment as narrated by one party and disputed by another

party, the facts have to be physically verified, because, the

recitals of the documents may not reveal the true facts and

measuring of land on the spot by a Surveyor may become

necessary. Therefore, inview of the facts and circumstances of

the case and relying on the above decision this Court is of the

view it is just and necessary to appoint Advocate Commissioner

as prayed for to elicit the matter in dispute with regard to

boundaries and existence of physical features. Therefore, this

court is inclined to allow the petition. Accordingly, this point is

answered in favour of petitioners/defendants.”

17. In the present case, there was a dispute regarding the

boundaries and the physical features of the property and

2

(2011) 4 ALT 541 at para No.10

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consequently if the learned civil judge issued the Commission,

any illegality cannot be imputed in the impugned order.

18. In Arvind Kumar Agarwal (supra), upon which the

learned counsel for the petitioner placed reliance, it was held as

under in paras 3 and 4.

“3. Ordinarily, in a suit for injunction, an

Advocate Commissioner is not appointed to gather

evidence. Only in cases where there is a serious

dispute regarding identity of the property or

boundaries thereof, an Advocate-Commissioner can

be appointed even in the suits filed for injunction

(See : Haryana Wakf Board Vs. Shanti Sarup and

others and Varala Ramachandra Reddy Vs. Mekala

Yadi Reddy and others (2010 (4) ALD 198).

4. A perusal of the plaint shows that the

petitioner has given specific boundaries to his property.

Therefore, the initial burden lies on him to prove the

identity of his property by adducing his own evidence. It

is only after both the parties adducing their respective

evidence, if any ambiguity prevails with reference to the

identity of the property, that the Court on its own or on

the application of either party, may appoint an

Advocate-Commissioner. In my opinion, in a case of

this nature, an application for appointment of an

Advocate-Commissioner at the threshold itself cannot

be entertained as the same will amount to gathering

evidence.”

19. In Arvind Kumar Agarwal (supra), the plaintiff filed the

suit giving specific boundaries to his suit property and he

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himself applied for issue of Commission. As such, in the case of

such a nature, it was held, that the application for appointment

of an advocate commissioner at the threshold itself could not be

entertained, as the same would amount to gathering of

evidence, whereas the initial burden was on the plaintiff to

prove the identity of his property by adducing his own evidence.

A perusal of the said judgment shows that there was no dispute

raised by the defendant regarding identity of the property or

boundaries. In the present case serious dispute is raised

regarding boundaries and existence of physical features. Even

applying the law as in Aravind Kumar Agarwal (supra) the

order under challenge stands the test thereof, as in Aravind

Kumar Agarwal (supra), itself, it was held that only in cases

where there is a serious dispute regarding identity of the

property or boundaries thereof, an advocate commissioner can

be appointed even in the suits filed for injunction.

20. Aravind Kumar Agarwal (supra) does not lay down that

in no case, at the initial stage, advocate commissioner cannot be

appointed. It was, considering the nature of that case that it

was held that an application at the threshold could not be

entertained.

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21. The appointment of commissioner under Order 26 Rule 9

CPC is a discretionary power. I find that the discretion has

been exercised judiciously. The court has recorded the reasons

for issuance of the commission. If the court considered it

necessary, for elucidation the matter in dispute, by getting the

report of the advocate commissioner, this court would not

interfere in such exercise of discretion of the trial court, under

Article 227 of the Constitution of India.

22. The civil revision petition is dismissed. No order as to

costs.

Consequently, the miscellaneous petitions, if any, pending

in the petition shall stand closed.

_________________________

RAVI NATH TILHARI, J

Date:11.07.2023

Gk

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THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

CIVIL REVISION PETITION No.1447 OF 2023

Date: 11.07.2023

Gk

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