Ponduri Pandari v. Garikapati Venkata Rao

THE HON'BLE SRI JUSTICE T. SUNIL CHOWDARY CIVIL REVISION PETITION No.3106 Of 2017 ORDER:

This Civil Revision Petition, under Article 227 of the Constitution of India is field challenging the order dated 22.06.2016 passed in I.A.No.951 of 2015 in I.A.No.602 of 2015 in O.S.No.205 of 2015 on the file of the Court of the Senior Civil Judge, Khammam, wherein and whereby the petition filed by the petitioner under Order XXVI Rule 9 r/w Section 151 CPC for appointment of Advocate Commissioner was dismissed.

Parties to this Civil Revision Petition, will hereinafter be referred to as they were arrayed in the trial Court in order to avoid confusion. Heard the learned counsel for the petitioner. A perusal of the record reveals that the petitioner filed O.S.No.205 of 2015 on the file of the Court of the Senior Civil Judge, Khammam, against the respondent seeking perpetual injunction in respect of an extent of 1125 sq. yards being part of Sy.No.73/EE of Barugudem village, Khammam Rural Mandal, Khammam district. Along with the plaint, the petitioner filed I.A.No.951 of 2015 seeking appointment of an Advocate Commissioner to measure the suit schedule property. The respondent filed counter opposing the petition. The trial court, after affording reasonable opportunity to both parties, dismissed the petition. Hence the present revision petition.

Now the point for consideration in this Civil Revision Petition is whether the trial Court is justified in dismissing the petition? It is a settled principle of law that the court cannot appoint advocate commissioner for the purpose of collection of the evidence.

It is needless to say that a person who filed a suit seeking perpetual injunction has to establish his possession over the suit schedule property much less as on the date of filing of the suit. It is not in dispute that the entire extent of Sy.No.73 of Barugudem village is an extent of Ac.41.29 guntas. It is the case of the petitioner that he has been in possession and enjoyment of the suit schedule property. In order to appreciate the contention of the petitioner, it is not out of place to extract hereunder the relief sought for by the petitioner:

"For the reasons stated in the accompanying affidavit, the petitioner prays that the Hon'ble Court may be pleased to appoint a Commissioner / Advocate to find out the physical features of the suit schedule property and fix the original boundaries of suit schedule property with the help of the Mandal Revenue Officer along with the records and conduct the survey with the help of surveyor of District Survey and land Records Office, Khammam to conduct the survey the Sy.No.73/EE i.e. the suit schedule land along with total extent of Sy.No.73 of Barugudem village, Khammam Rural Mandal, Khammam, thereon and file the same along with his report, in the interest of justice."

A perusal of the above prayer clearly indicates that the petitioner requested the Court to appoint an advocate commissioner to measure the Sy.No.73/EE along with total extent of Sy.No.73 with the help of the Mandal Revenue Officer and fix the boundary stones to the suit schedule property.

A perusal of the above clearly demonstrates that the petitioner is seeking appointment of advocate commissioner in order to identify the suit schedule property. If the relief sought for by the petitioner is allowed, certainly, it would amount to collection of evidence on behalf of the petitioner which is not permissible under law. The trial court dismissed the petition on the ground that the advocate commissioner cannot be appointed for gathering of evidence. I am fully agreeing

with the observations recorded by the trial court. While exercising the jurisdiction under Article 227 of the Constitution of India, this court cannot lightly interfere with the order passed by the trial court unless there is illegality or irregularity apparent on the face of the record. Viewed from factual or legal aspects, there is no illegality or irregularity in the order passed by the trial court. Hence the Civil Revision Petition is dismissed. No order as to costs. As a sequel, miscellaneous petition, if any, pending in this Civil Revision Petition shall stand dismissed.

_____________________ T. SUNIL CHOWDARY, J.

Date: 01.09.2017 Kvsn