Andhra Pradesh High Court - Amravati
.Anusuri Krishna, vs Kundalanageswara Rao, on 25 April, 2025
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
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APHC010413142024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3209]
(Special Original Jurisdiction)
FRIDAY ,THE TWENTY FIFTH DAY OF APRIL
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No:
N 2163 of 2024
Between:
Anusuri Krishna and Others ...PETITIONER(S)
AND
Kundalanageswara Rao and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. Mr.P.VIVEK Counsel for the Respondent(S):
1. Mr.A.K.KISHORE KISHORE REDDY 2 The Court made the following Order:
The 1st respondent in the Revision Petition is the plaintiff, who filed a suit in O.S.No.452 of 2016 on the file of the Court of Principal Junior Civil Judge, Kakinada, against the Revision Petitioners herein and others stating inter alia, that originally the plaint schedule property admeasuring Ac.1.15 cents was owned by Smt.Gangabathula Sooramma, who purchased the same through registered Sale Deed dated 15.02.1966 and on her demise, the said land was devolved upon her son one Mr.Gangabathula Gandhi and on his death, the same was devolved upon his eight children by way of succession, that they got divided their land into house plots and the 1st respondent purchased Plot No.28 through Registered Sale Deed and is in possession and enjoyment of the same.
2. The revision petitioners filed written statement, inter alia, denying the plaint averments including the title of the 1st respondent, his vendors etc. It is their case that small extents of sites were assigned to the family members of some of the petitioners individually and pattas were granted, that some real estate brokers in collusion with some private persons were making efforts to get into in possession of their patta sites, that some writ petitions were filed aggrieved by the action of the authorities in trying to dispossess them in a high handed manner. They also sought dismissal of the suit, inter alia, contending that plaintiff suppressed the material facts, that he is not in possession and enjoyment of the suit schedule property at any point of time. 3
3. Initially, the 1st respondent sought relief of permanent injunction and subsequently sought amendment of the relief for declaration of title and recovery of possession. The learned Trial Court formulated the issues. Subsequently, in view of the amendment of the plaint seeking declaration of title and possession, additional issues were framed.
4. While so, the 1st respondent / plaintiff filed an application under Order XXVI Rule 9 r/w Section 151 of Code of Civil Procedure (for short 'C.P.C.'), seeking appointment of an Advocate Commissioner to measure the properties of both the parties by fixing its boundaries in respect of their documents with the assistance of the Mandal Surveyor and to draw a plan and to file a report before the Court. The said application was resisted by the petitioners herein by filing counter. They, inter alia, pleaded that the petition was filed for gathering evidence through Commissioner's report, that it is very difficult to identify the suit schedule property and that it is not the stage to appoint the Commissioner.
5. The learned Principal Junior Civil Judge, after considering the submissions made on behalf of both sides, allowed the application and appointed an Advocate Commissioner to measure the property of both the parties as per their documents with the assistance of Mandal or any licensed surveyor.
6. Aggrieved by the said order of appointment of Advocate Commissioner, the petitioners / respondents-defendants filed the present Revision Petition. 4
7. Mr. P.Rajasekhar, learned arguing counsel for the petitioners / defendants made submissions, inter alia, that the order under challenge is not sustainable as the Court below failed to consider the matter in the correct perspective. Referring to the prayer sought for in the application, he submits that the initial burden lies on the 1 st respondent / plaintiff to establish his title over the plaint schedule property and that identification of the same cannot be assigned to the Advocate Commissioner and the order under revision which would enable the 1st respondent to gather evidence, is not tenable in Law. He submits that at the stage of trial or fag end of the trial, an application can be filed, if any clarification is required and the Court has to record its satisfaction, though it has power to appoint an Advocate Commissioner. He submits that the learned Trial Judge did not record his satisfaction and in such circumstances, the order under revision is liable to be set aside. Relying on the decisions in 1) Batchu Narayana Rao v. Batchu Venkata Narasimha Rao 1 , 2) Papasani Sankara Reddy v. Kandula Hanumantha Reddy & Others2, 3) Koduru Sesha Reddy v. Gottigundala Venkata Rami Reddy 3,
4) Ram Dass v. Labh Singh (Since deceased) through Lrs., & Others 4, 5) A.Gopal Reddy v. R.Subrahmanyam Reddy and another 5 and 6) Seenu @ Ramadass v. S.Palani & Others6, he seeks to allow the Revision Petition by emphasizing that the purpose of filing the application for appointment of Advocate Commissioner is not to gather evidence.
1 2010 (5) ALD 83 2 2013 (4) ALD 322 3 2005 Supreme (AP) 548 4 2017 SCC OnLine P&H 6238 5 2013 (4) ALD 347 6 2022 Supreme (Mad) 1498 5
8. On the other hand, the learned counsel for the 1st respondent sought to sustain the order under challenge, inter alia, contending that there is no illegality or perversity in the order and as such, no interference is called for by this Court. He submits that initially, the suit was filed for permanent injunction, later by way of amendment, relief of declaration of title and recovery of possession was sought. He submits that as it is the case of the petitioners / defendants that the plaint schedule property and the property claimed by them are different, measurement of the land was necessitated. While contending that the Commissioner can be appointed pre-trial or post trial, measuring of the land does not amount to collection of evidence, he submits that there is no justification for opposing the appointment of the Advocate Commissioner, more particularly, as the petitioners / defendants will have an opportunity to file their objections to the Commissioner's report and can cross examine him for eliciting the correct facts / truth. Making the said submissions and relying on the decisions in 1) Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam7, 2) P.Moosa Kutty v. Mr.K.P.Ramakrishna Ayyar8 and
3) Shadaksharappa v. Kumari Vijayalakxmi & Others9, the learned counsel urges for dismissal of the Revision Petition.
9. This Court has considered the submissions made by the counsel on both sides as also the decisions referred to supra. Perused the material on record.
7 1985 (1) Mad LJ 380 8 1953 (1) Mad LJ 632 9 2023 SCC OnLine Kar 53 6 On an appreciation of the matter, the point that arises for consideration is : Whether the Order of appointment of an Advocate Commissioner made by the learned Trial Court, warrants interference by this Court under Article 227 of the Constitution of India?
10. Before adverting to the Order under Revision, it may be appropriate to note that the power of the Court under Order XXVI, Rule 9 of C.P.C., is discretionary, and the same has to be exercised in a judicious manner, depending on the facts and circumstances of each case. It has to appreciate the overall case by taking into consideration the pleadings of the parties and the reliefs claimed with reference to the controversy between the parties and the necessity to appoint Advocate Commissioner in deciding the dispute. It is settled Law that an Advocate Commissioner can be appointed at any stage of the suit or during the pendency of the appeal.
11. In the present case, the application seeking appointment of Advocate Commissioner was filed on the premise that the properties claimed by the revision petitioners / defendants are different and if the same are ascertained by a Surveyor by fixing the boundaries with reference to the documents and a report is filed by the Commissioner, the same would meet the ends of justice and by virtue of the appointment of Commissioner, no prejudice will be caused to either parties. As noted earlier, the petition was opposed, inter alia, contending that the same is filed for gathering evidence and as such, the Commissioner cannot be appointed.
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12. The learned Trial Court allowed the application while rejecting the submissions made on behalf of the revision petitioners / defendants opining that the measurement of the properties of both the parties as per their documents does not amount to gathering evidence and it would help in better appreciation of evidence produced by the parties. This itself is sufficient to hold that the learned Trial Court, after satisfying itself, had ordered the appointment of Commissioner. Therefore, the contention advanced on behalf of the revision petitioners that the learned Trial Judge had not recorded his satisfaction, cannot be accepted.
13. Insofar as the other submission made on behalf of the revision petitioners, there can be no second opinion that the initial burden lies on the plaintiff to establish his title over the property in dispute. However, if the parties seek to take aid of the provision of Law i.e., Order XXVI, Rule 9 of C.P.C., for resolution of the dispute, the same cannot be denied, except if the invocation of the said provision is for the purpose of gathering evidence. Be that as it may.
14. The issue with regard to appointment of Advocate Commissioner, is the subject matter for consideration in a number of cases and the applicability of the decisions rendered therein, depends upon the facts and circumstances of each case.
15. In Batchu Narayana Rao's case referred to supra, a learned Judge of the erstwhile Common High Court of Andhra Pradesh at Hyderabad, dealing with an order passed by the Trial Court, appointing a Commissioner on an 8 application filed by the respondent / plaintiff in a suit for declaration of title and recovery of possession, opined that a Commissioner cannot be appointed to gather evidence for and on behalf of any party and it is for the party concerned to establish his case and feasibility of appointment of a Commissioner, would be considered, if Court feels that inspection and further enquiry is necessary, having regard to the uncertainty, that came into existence, after the trial has progressed to certain extent. The learned Judge allowed the revision by setting aside the order under revision.
16. In Kandula Hanumantha Reddy's case referred to supra, a learned Judge of the erstwhile High Court of Andhra Pradesh, was not inclined to interfere with the order of the Trial Court, dismissing the application filed under Order XXVI Rule 9 of C.P.C. The learned Judge observed that the initial burden is on the plaintiff to prove the plaint averments by adducing cogent oral and documentary evidence and that even though the Order XXVI, Rule 9 C.P.C., envisages appointment of a Commissioner for elucidation of the matters in dispute, ordinarily, the Commissioner is appointed, where the Court is of the opinion that the available evidence is not enough to arrive at proper and correct conclusion and for effectual adjudication of the disputes involved in the suit.
17. A.Gopala Reddy is a case, wherein, in a suit seeking relief of perpetual injunction, the application filed under Order XXVI, Rule 9 of C.P.C., filed by the 1st defendant was allowed. The learned Judge, opined that the appointment of Commissioners to note the physical features or to undertake 9 other related activities in a suit for injunction is a rarity. While setting aside the order under challenge, the learned Judge, inter alia, opined that "the occasion to appoint an Advocate Commissioner would arise, if only the trial of the suit is in progress and a typical question, which needs the examination by a Commissioner arise. The appointment of Commissioner cannot be made at the threshold. Such an effort would be treated as a measure to gather evidence."
18. Koduru Sesha Reddy's case referred to supra, is yet another decision of a learned Judge of the erstwhile High Court of Andhra Pradesh at Hyderabad. In the said case, the learned Judge was dealing with a matter, wherein the Trial Court appointed an Advocate Commissioner on an application made by the petitioner / plaintiff in a suit for perpetual injunction. Subsequently, the defendants filed another application seeking appointment of Advocate Commissioner on the premise that the earlier Commissioner was appointed, without notice and the Trial Court allowed the said application. In the revision filed by the petitioner, questioning the order of the appointment of second commissioner, the learned Judge, inter alia, opined that in a suit for perpetual injunction, the appointment of a Commissioner to note down the physical features, cannot precede recording of evidence, that parties have to adduce their evidence in support of their respective contentions as to possession. The Court would be justified to appoint Advocate Commissioner, only if it feels that the evidence on record is not sufficient to record a finding, for the purpose of granting or refusing the relief of injunction. The learned 10 Judge in the facts and circumstances of the case, allowed the Revision Petition holding that the report of the Commissioner appointed on the request of the petitioner / plaintiff, cannot be made use of, for the purpose of deciding the dispute in the suit and that the appointment of Commissioner through the Order in the subsequent I.A., filed by the respondents / defendants is premature. The other decisions relied on by the learned counsel for the petitioner are of persuasive value only. Be that as it may. Even the decisions relied on by the learned counsel for the respondents, except the decision in K.Dayanand & Another v. P.Sampath Kumar rendered by a learned Judge of the erstwhile High Court of Andhra Pradesh, are only of persuasive value.
19. In Badana Mutyalu & Others v. Palli Appalaraju10, a learned Judge of the erstwhile High Court of Andhra Pradesh at Hyderabad, examined the matter with reference to appointment of Advocate Commissioner in a suit for permanent injunction. The facts of the said case are more or less similar to the case on hand. The revision petitioners in the said case are the defendants in the suit. The respondent / plaintiff, pending suit, filed an application under Order XXVI. Rule 9 of C.P.C., praying for appointment of Advocate Commissioner to take measurements of the property mentioned in the Registered Sale Deed and to find out whether the 'ABCD' plan marked vacant site is part and parcel of the property mentioned in the said registered sale deed or not with the help of a qualified surveyor. It was contended on behalf of the petitioners that the application for appointment of an Advocate 10 MANU/AP/1460/2013 11 Commissioner was filed to collect the evidence, that earlier Advocate Commissioner was appointed to note down the physical features of the property and therefore, another Advocate Commissioner cannot be appointed to localize the 'ABCD' site which is the subject matter of the suit between the parties. Placing reliance on the decision of Dammalapati Satyanarayana v. Datla Venkata Ramabhadra Raju @ D.V.R.Raju (reported in 2006 (4) ALD
675), the learned Judge after referring to the decisions rendered by High Court of Madras in Ponnusamy Pandaram (referred to supra), Mahendranath Parida v. Punanda Parida (AIR 1988, Orissa 248) as also two Division Benches of the erstwhile High Court of Andhra Pradesh held that there is no error of jurisdiction committed by the Trial Court and dismissed the revision petition. It may be profitable to refer to the relevant portion of the order of the learned Judge which reads thus:
"16 It has been held that a plaintiff could have a Commissioner appointed for local investigation even ex-parte on the date of the suit. It has been so held by a Division Bench of this Court in C. Veeranna Vs. C. Venkatachalam [MANU/AP/0129/1959 : AIR 1959 AP 170 : 1958 ALT 792] consisting of P. Chandra Reddy, Offg. C.J. (as he then was) and Seshachalapati, J. It was argued before the learned judges that Rule 18 of Order 25 contemplates the issue of notices before the appointment of the Commissioner. This contention was rejected and it was held that Rule 18 contemplated the issue of notices after the appointment of a Commissioner, but not before such appointment. There was, therefore, no mandate in the statute that an ex parte Commissioner could not be appointed. The learned judges observed:
Rote 18 contemplates a situation after the appointment of a Commissioner and not before the commission is issued. There is nothing in Rule 9 of warrant a contention that a duty is cast on the Court to issue notice before an order is passed under that rule. It is open to the 12 Court to issue an ex parte commissioner if it deems that a local investigation is requisite for the purpose of the suit...
17. This decision of the Division bench was followed in Savitramma and another v. B. Changa Reddy [1988(1) ALT 353]. In that case, it was held:
16. The question as to when a Commissioner could be appointed should be within the wide discretion of the trial Court, but it cannot be said that no commissioner could be appointed before the issues are framed or the evidence is led......
18. So it has been held that either party to the suit could have a Commissioner appointed even before the trial. In view of the above decisions, I hold that in situations where there is controversy as to identification, location or measurement of the land, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared. The party against whom the report may have gone may choose to adduce evidence in rebuttal.
20. In Bandi Samuel and another v. Medida Nageswara Rao11, a learned Judge of the erstwhile Common High Court for the State of Telangana and for the State of Andhra Pradesh at Hyderabad referred to a catena of cases with reference to appointment of Advocate Commissioners and it may be profitable to refer to the relevant paragraphs from the said decision, for better appreciation:
7. The object of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to collect evidence where the party can procure the same. An Advocate Commissioner can be appointed under Order XXVI Rule 9 of the Code of Civil Procedure 1908 inter alia for elucidating any matter in dispute. There is some confusion as to in what circumstances an advocate-commissioner is to be appointed in a civil suit. To answer this question, we have to understand the expression of elucidating any matter in dispute in Order 26, Rule 9 of CPC. There are several expressions in this regard. Some are under the impression that no advocate commissioner is to be appointed in suit for injunction. For example, the 11 2017(1) ALD 582 13 claim for injunction made by the plaintiff is based on the plea that there is only one way to his house and that he is being prevented by the defendant from using said way, any amount of evidence in this regard may not help the Court to render a correct finding on this aspect, as evidence in this regard would be available on the spot at the ground/field. So, a situation such as this would definitely fall within the expression of elucidating any matter in dispute to avoid adducing of much oral evidence by consuming time of Court and parties and ultimately with no possibility of practical approach for accurate determination of the lis. No doubt, before appointing an advocate commissioner, Court shall examine pleadings, relief claimed and real controversy between parties. Court has to keep in mind therefrom to decide whether there is an actual necessity to appoint advocate commissioner to decide any real controversy between parties.
8. No doubt an Advocate-Commissioner cannot be appointed for making an enquiry about factum of possession of the property in dispute, which is nothing, but fishing of information and not elucidating any matter in dispute.
9. There are circumstances in which, it is only a Commissioner inspecting the property promptly and recording timely assessment of what obtains relating to the property from threat of changing or obliterating the existing physical features lo destroy valuable evidence on ground, could alone assist courts to decide correctly. If such prompt actions are not taken, it may destroy the valuable rights of the parties.
10. In Bandaru Mutyalu Vs. Palli Appalaraju (2013 (5) ALD 376 = 2013 (6) ALT
26), it was held that in situations where there is controversy as to identification, location or measurement of the land, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared and the object of local investigation under Order XXVI, Rule 9 of the Code which cannot belittled for that conclusion placed reliance upon Sanjay, Son of Namdeo Khandare Vs. Saheb Rao Kachru Khandare, 2001 (4) CCC 416; Ponnusamy Pandaram Vs. The Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad.33, Mahendranath Panda Vs. Purnanada & Others, AIR 1988 Ori. 248; C.Veeramma v. C.Venkatachalam, 1958 ALT 792 = AIR 1959 AP 170, and Savitramma v. B.Changa Reddy, 1988 (1) ALT.
11. In J. Satyasri Rambabu Vs. A. Anasuya, 2005 (6) ALD 389, this Court at paragraph No.6 held as under: It is no doubt true that the Courts are normally reluctant to appoint a Commissioner for noting physical features of the suit 14 schedule property, particularly in a suit for injunction since the same would amount to collecting evidence in favour of one of the parties. However, there is absolutely no reason to hold that it is a hard and fact rule. Having regard to the facts and circumstances of the case and particularly whenever the Court prima facie finds that there is an attempt on the part of one of the parties to alter the physical features of the suit property and it is necessary to take note of the same, it is always open to the Court to appoint a Commissioner for inspection of such property.
12. In Mallikarjuna Srinivasa Gupta Vs. K. Sheshirekha, 2006 (3) ALD 362, in which case, a suit was filed for declaration of title and an application was filed contending that the defendant therein encroached a portion of the site. The stand of the defendant therein was that he has not encroached any portion of the site as alleged by the plaintiff. In the circumstances, this Court held as follows: By mere looking into the sale deed or the lay out, it is not possible to determine the rights, unless it is verified whether any portion of the building is constructed in Plot No.62. Therefore, it is essential to consider the request of the petitioner for appointment of Advocate Commissioner for the purpose mentioned therein.
13. In Varala Ramachandra Reddy Vs. Mekala Yadi Reddy and others, 2010 (4) ALD 198, it was held that an Advocate Commissioner can be appointed in an injunction suit for local inspection of the suit site and to demarcate the suit schedule property with the help of the Surveyor.
14. In Shaik Zareena Kasam v. Patan Sadab Khan, 2011 (4) ALD 231, this Court at paragraph No. 10 held as under: 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. It was also held referring to Mallikarjuna Srinivasa Gupta and Varala Ramachandra Reddy (supra), that if there is some delay in filing the application to appoint an Advocate Commissioner and if there are some laches on the part of one party, the Court may impose reasonable COSES
15. In Donadulu Uma Devi v. Girika Katamaiah @ Basaiah, 2013 (2) ALD 86 = 2013 (1) ALT 548, it was held at para 12 that when there is a dispute or issue with regards to identity of a property in a litigation it is necessary to appoint a Commissioner for localizing the property which may be even by taking necessary 15 assistance from a qualified surveyor which will not amount to collecting evidence which is prohibited.
16........
17. The Supreme Court in Gurunath Manohar Pavaskar & others vs. Nagesh Siddappa Navalgund and others, CDJ 2007 SC 1339, has held that the learned trial Judge may appoint an Advocate Commissioner for the purpose of taking measurement and demarcation of the disputed suit land.
18. The Supreme Court in Haryana Waqf Board supra, at paragraphs 4 to 8 held as under: "Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC."
21. In Sarala Jain v. Sangu Gangadhar12, a learned Judge was dealing with the civil revision petition filed by the defendant in O.S.No.322 of 2012 on the file of the Court of Principal Junior Civil Judge, Nizamabad, seeking perpetual injunction and for demarcation of the suit schedule property. The Trial Court appointed an Advocate Commissioner to fix the boundaries of the schedule property. In the revision, it was, inter alia, contended that appointment of Advocate Commissioner to make local investigation, amounts to collection of evidence and in support of the said contention reliance on Sagi Vijaya Ramachandra Raju v. Koppisetti Satyanarayana (2009 SCC OnLine AP 907) etc., was placed. The learned Judge though in the facts and circumstances of the case, set aside the order of appointment of an Advocate Commissioner for the reasons set out in the decision, while referring to the Judgment of the Hon'ble Supreme Court in Haryana Waqf Board and Others 12 2016 (3) ALT 132 16 v. Shanti Sarup and Others (reported in (2008) 8 SCC 671) at Para 20 held that "commissioner can be appointed for localization of property when there is dispute or issue with regard to identity of property in litigation."
22. In Haryana Waqf Board's case (referred to supra), the Hon'ble Supreme Court was dealing with an appeal filed by the Punjab Wakf Board- plaintiff in a suit for declaration and injunction. The Second Appeal filed by the Waqf Board was dismissed by the High Court. The Hon'ble Supreme Court while observing that in the case on hand, an application was filed under Order XXVI, Rule 9 of C.P.C., which was rejected by the Trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order XXVI, Rule 9 of C.P.C., allowed the appeal.
23. In Gurunath Manohar Pavaskar & Others v. Nagesh Siddappa Navalgund & Others 13 , the Hon'ble Supreme Court was dealing with an appeal filed by the defendants in a suit filed against them, inter alia, for the reliefs including a decree for permanent injunction. The suit was decreed in favour of the respondents / plaintiffs and the High Court affirmed the order of the Trial Court. The Hon'ble Supreme Court while holding that a revenue record is not a document of title and merely raises a presumption in regard to possession, in the facts and circumstances, opined that the interest of justice would be sub-served, if the impugned judgments are set aside and the matter is remitted to the learned Trial Judge for consideration of the matter afresh. 13
(2007) 13 SCC 565 17 While granting liberty to the respondents / plaintiffs for filing an application for amendment of plaint, if they so desire, praying inter alia for declaration of title as also for damages, the Hon'ble Supreme Court also observed that the learned Trial Court may also appoint a Commissioner for the purpose of measurement of the suit land.
24. In K.Dayanand's case referred to supra, a learned Judge was dealing with a Civil Revision Petition filed against the order of the Trial Court allowing the application filed by the respondent / plaintiff under the provisions of Order XXVI, Rule 1 and 9 r/w Section 151 of C.P.C. After referring to a catena of decisions, on the issue of appointment of Advocate Commissioner, the learned Judge held that there is no absolute bar on the appointment of Commissioner in a suit for injunction also as per the Law laid down in the various judgments to which a reference was made nor the provisions of Section 75 and Order XXVI, Rule 9, do impose such a prohibition. Observing that the respondent-plaintiff filed an application for appointment of Advocate Commissioner to note down the physical features of the schedule property only and not for the purpose of finding out who is in possession of the property, the learned Judge confirmed the order passed by the Trial Court and dismissed the revision petition.
25. In Sri Krishna Kumar V Shah v. Sri T.Shanker Singh (C.R.P.No.2567 of 2022), a learned Judge of the High Court Telangana, after referring to K.Dayanand's case referred to supra and other decisions, inter alia, held that appointment of Advocate Commissioner for noting down the physical features 18 of the properties does not amount to gathering evidence on behalf of either of the parties.
26. In the light of the above cited decisions, which lend support to the case of the respondent / plaintiff and the relief granted by the learned Trial Court to measure the property of both the parties as per the documents with the assistance of Mandal or any licensed surveyor, the same would not amount to gathering of evidence. The opinion expressed by the learned Trial Court that the measurement of the properties of both the parties as per the documents would help in better appreciation of evidence produced by the parties cannot be viewed as contrary to Law or perverse, warranting interference by this Court in exercise of power under Article 227 of the Constitution of India. The point is answered accordingly.
27. In the aforementioned view of the matter, the Revision Petition fails and the same is accordingly dismissed. No costs.
As a sequel, all the pending miscellaneous applications, if any, shall stand closed.
_____________________ NINALA JAYASURYA, J Date: 25.04.2025 BLV 19 HONOURABLE SRI JUSTICE NINALA JAYASURYA C.R.P. No.2163 of 2024 Date: 25.04.2025 BLV