In G.L.Purusotham and others v. Y. Nagaraju and anotherr, this Court also considered the scope of Order

Counsel for the Petitioners : SRI' VEDULA CHITRALEKHA Counsel for the Respondent : VADLAKONDA RAVI KUMAR REDDY The Court made the following: ORDER HON'BL E SRI JUSTI CEK . LAKS HMAN CIVIL REVIS ION PETITI ON No.4 199 o t 2024 ORDER: Heard Sri Vedula Srinivas, learned Senior Counsel representing smt. vedula chitra_lekha, learned counsel for the petitioner and Sri Vadlakonda Ravi Kumar Reddy, learned counsel appearing for respondent. perused the record.

2. This Civil Revision petition is filed under Article 227 of the Constitution of India, challenging the order, dated 3O.1O.2O24 in I.A.No.7OS of 2022 in I.A.No.29O of 2022 in O.S.No.307 of 2022 passed by learned principal .Iunior Civil Judge-cum-Judicial Magistrate of First Ciass, Karimnagar.

3. Respondent has hled a suit vide O.S.No .3O7 of 2022 against the petitioners herein for declaration of the title, perpetual injunction and to declare the registered gift settlement deed bearing document No.3gt4 of 2022, dated 29.03.2022 and registered gift settlement deecl l i Y KL,J C.R.P.No.4199 of 2024 2 bearing document No.38 17 of 2022, dated 29'O3'2O22 as null and void. Respondent is claiming that he is the absolute owner and possessor of the open plot measuring

152.9 square yards pertaining to part of house bearing door No.SO5-547lDl2l3lAll out of Sy'No'436 situated at Raghavendranagar of Laxminagar locality, Karimnagar Town, Mandal and District. Along with the suit, he has lrled an interlocutory application vide I'A'No'29O of 2022 seeking ad-interim injunction' The said application is pending.

4. During pendency of the said suit and the said application, respondent has filed an interlocutory application vide I.A.No.705 of 2022 wnder Order 26 Rule greadwithsectionlSiC.P.CtoappointanAdvocate Commissioner to fix the boundaries in between the land in Sy.Nos.435 and 436 of Karimnagar and locate the suit plot in which survey number the said plot falls through the Deput5r Inspector of Survey, Karimnagar Division' -::-a,? KL,J C.R.P.No.4199 of 2O24 J enabling the respondent/plaintiff to proceed iurther in the suit on the following grounds:-' i) Defendants along with their father converted their land in Sy.No.435 of Karimnagar town into residential plots and while converting'the same they have formed interna-l roads in the plots, thereby they have lost some area. ii) To cover up the lost area in forming roads in Sy.No.435 of Karimnagar, they have illegally made layout by showing some area in Sy.No.436 of Karimnagar as their land in Sy.No.435. As per the said layouts, plot Nos.2 to 5 are located in Sy.No.436 only. But, they are illegally saying that the said plots are located in Sy.No.435 o[ Karimnagar. But, the plaintifls vendor restrained them from hxing the boundaries as plot Nos.2 to 5 and his vendor hled a petition before the Land Survey Department to survey and to hx tlee boundaries in respect of land in Sy.Nos.435 ald 436 of Karimnagar. The Deputy Inspector of Survey, Karimnagar Division --_.- KL,J C.R.P.No.4199 of 2024 4 visited the disputed area and got surveyed the same and fixed the boundaries between the Sy.Nos'435 and 436 of r. .] 1 Karimnagar, under cover of panchanama on 17 'O8'2O21' iii) It is further contended that as per the survey report, plot Nos.2 to 5 of the petitioners are located in Sy.No.436 of Karimnagar only. Even after the survey' having come to know about the truth, the petitioners herein in collusion with their father brought into existence the registered gift deeds illega-tly with arr intention to occupy the area including suit plot in Sy.No.436 of Karirnnagar by saying the area in Sy'No'435 of Karimnagar. In fact, plot Nos'2 and 3 of petitioners are in Sy.No.436. Therefore, to ascertain the said fact and to fixtheboundariesinbetweenthelandinSy.Nos.435and 436, it is appropriate to appoint an Advocate Commissioner.

5. The said application was opposed by the petitioners herein contending that respondent/plaintiff cannot seek appointment of an Advocate Commissioner to fix the 'n ,] l' ,f,. KL,J C.R.P.No.4199 of 2O24 5 boundaries between the two lands. The said application was hled during the pendency of the interlocutory application i.e., I.A.No.29O of 2022 in O.S.No.3O7 of 2022 filed by the respondent/plaintiff seeking ad-interim injunction. Thus, respondent 1S trying to collect the evidence during the pendency of the said suit and I.A., which is impermissible.

6. Vide impugned order, dated 3O.1O.2O24, learned tria,l Court allowed the said application holding that the matter is posted for conciliation under Section 89 of C.P.C and issues are yet to be framed. The nature of the suit is for declaration of title, perpetual injunction 1n respect of land in Sy.No.436. According to the defendants, their land is in Sy.No.435. According to the respondent/plaintiif, the suit schedule property 15 ln Sy.No.436. Since the nature of relief is sought in regard to declaration of title, when both the petitioners and respondent are claiming that the suit schedule property in Sy.Nos.435 and 436 themselves separately with regard a- KL,J C.R.P.No.4I99 of 2O24 6 to their possession, therefore, it is just and necessary to fix the boundaries in between the aforesaid two survey numbers. Challenging the said order, petitioners filed the present Civil Revision Petition.

7. Sri Vedula Srinivas, learned Senior Counsel representing Smt. Vedula Chitralekha, learned counsel for the petitioners and Sri Vadtakonda Ravi Kumar Reddy, learned counsel for the respondent made submissions extensivelY. In the light of the said submission, it is relevant to

8. note that Order 26 of C.P.C. deals with Commissions' Order 26 Rule 9 of C.P.C. says commissions to make locai investigations and it says in any suit in which the Court deems a location investigation to be requisite or proper flor the purpose of elucidating any matter in dispute, are of ascertaining the market value of any property at the amount of any mesne properties or damages or annua-l net profrts, the Court may issue a Commission to such person as it thinks ht directing him KL,J C.R.P.No.4199 of 2024 . 7 to make such investigation and to report thereon to the Court.

9. It is relevant to note that the object appointment of Commissioner is to assist the trial Court in deciding the lis involved in a particular suit. The trial Court is having power to appoint an Advocate Commissioner at any stage. At the same time, the same is impermissible when the party tried to collect the evidence.

10. Vide order, dated 28.0a.2O24 in C.R.P.No.1833 of 2024, this Court considered the appointment of two Advocate Commissioners. Therefore, the facts of the present case are different to the lacts of the said case,

11. In G.L.Purusotham and others v. Y. Nagaraju and anotherr, this Court also considered the scope of Order 26 Rule 9 of C.P.C. This Court also placed reliance on the Judgrnent of this Court in Machineni Rama Devi and others v. M.Sathyanarayana and anothef wherein, I 20 t s1s1 eLo +oo 2 20t: 1oy eLo r;t r-__ KL,J C.R.P.No 4199 of 2O24 8 after considering the case law' this Court had held that where there is controversy as to identification' location or measurement of the tand' local investigation should be done at an ea'rly stage so that the parties are aware of the reportoftheCommissionerandgototrialprepared.It was further held' that the object of local investigation under Order XXVI Rule 9 of C'P'C' cannot be belittled and its object is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court, but could be taken onlY from its peculiar nature, on the sPot' This Court also held that even ex Parte, a Commissioner can be appointed and relied upon the decision of a Division Bench of this Court in C.Veerqnna u' C'Venkatocho.la;m'3' i12. Thus, the ob.;ect of Order 26 Rule 9 is only for the purpose of making local investigation and assisting the Court in deciding the lis' t t958 At-]' u 9l .E.r+rE'r KL,J C.R.P.No.4 199 of 2024 9

13. In the light of the said submissions, coming to. the facts of the present case respbndent has frled the aforesaid suit vide O.S,No.3O7 of 2022 against_ the petitioners for declaration of title, perpetual injunction and to declare the aforesaid two registered gift settlernent deeds as null and void. Along with the said suit, he has filed an interlocutory application i.e., I.A.No.29O of 2022 for ad-interim injunction and the said interlocutory application and the suit is pending. During the pendency of the said suit, respondent had Iiled an interlocutory. application vide I.A.No.7OS of 2022 wnder Order 26 Rule 9 of C.P.C to appoint an Advocate Commissioner to fix the boundaries in between the land in Sy.Nos.435 and. 436 of Karimnagar, to locate the suit plot in which survey number, through the Deputy Inspector of Survey, Karimnagar Division, enabling the respondent/plaintiff proceed further in the matter on the aforesaid grounds. It is the specific contention of the respondent herein that on his request, the Deputy Inspector of Survey, Karimnagar - KL,J C.R.P.No.4199 of 2O24 l0 Division has conducted survey and frxed the. boundaries between the Sy.Nos.435 and 436 of Karimnagar on tZ.Otg.ZOZt and drawn panchanama on the said date' As per the said survey report, alleged PIot Nos'2 to 5 of the petitioners herein are located in Sy'No'436, as per the respondent, the suit schedule property is in Sy'No'435' Therefore, he sought appointment of Advocate Commissioner to hx the boundaries'

14. The trial Court cannot appoint an Advocate CommissionertolrxtheboundariesoflandinSy.Nos.435 and 436. The same is against the object and purpose of order26RulegofC.P.C.Ifthereisadisputewithregard to the identification of the property to note down the physical features of the sarne, the trial Court has power to appoint an Advocate Commissioner and at the same time, cannot appoint Advocate Commissioner to fix the boundaries. It is nothing but collection of evidence' which is impermissible' It is against the object of Order 26 Rule 9 of C.P.C' Reasons mentioned by the KL,J C.R.P.No.4199 o[ 2O24 respondent seeking to appoint an .Advocate Commissioner are also not satisfactorv. Without considering the said aspects vide impugned order, dated 3O.1O.2O24, learned trial Court appointed an Advocate Commissioner to fix the boundaries in Sy.Nos.435 and 436 of Karimnagar. Therefore, it is liable to be set aside and accordingly it is set aside. However, liberty is granted to respondent to file fresh application seeking appointment of an Advocate Commissioner for noting down the physical features of the suit schedule property and also to conduct survey with the help of survey department oflicials.

15. Accordingly, this Civil Revision petition is allowed. No costs. As a sequel, the miscellaneous petitions, if any, pending in this Civil Revision petition shall stand closed. //TRUE COPY// SD/- P. GOWRI SHANKAR DEPUTY REGISTRAR SECTI OFFICER 1 The Principal Junior civir Judge-cum-Judiciar Magistrate of First crass, Karimnagar.

2. One CC to SRl. VEDULA CHITRALEKHA, Advocate tOpUCl 3 One CC to SRl. VADLAKONDA RAV| KUMAR REDDY, Advocate tOpUCI c. Two CD Copies HIGH COURT DATED:0 4l04l?0?s I o \i. l lle .S 14 05 rljo atr E a .L_' { ,1E-o + !''o1 ,..: ,-,)1