1 VS,J CRP.No.1749 of 2024 APHC010336952024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] SATURDAY,THE TWENTY SECOND DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA CIVIL REVISION PETITION NO: 1749/2024 Between: 1. MANCHENA BASAVAYYA,, S/O. BABU RAO, AGED 50 YEARS, OCC- CULTIVATION, R/O. DOOR NO. 4/42, KOTAPADU VILLAGE, CHATRAI MANDAL, KRISHNA DISTRICT. 2. MANCHENA POORNACHANDRA RAO,, S/O. BABU RAO, AGED 52 YEARS, OCC- CULTIVATION, R/O. DOOR NO. 4/42, KOTAPADU VILLAGE, CHATRAI MANDAL, KRISHNA DISTRICT. 3. BOTTU VIJAYALAKSHMI,, W/O. VIJAYA CHOUDARY, AGED 54 YEARS. HOUSEWIFE, R/O. CHEEPURUGUDEM VILLAGE, H/O. KOTAPADU VILLAGE, CHATRAI MANDAL, KRISHNA DISTRICT. ...PETITIONER(S) AND 1. GANDHAM JAGANNADHARAO, S/O. VENKATESWARA RAO, AGED 66 YEARS, OCC- CULTIVATION, R/O. GHANTAVARI VEEDHI, CHINTALAPUDI VILLAGE AND MANDAL, WEST GODAVARI DISTRICT. 2. DUNNA JAGATHI KUMARI, W/O. VINOD KUMAR, AGED 68 YEARS, R/O. D. NO. 45, KADAKPURA, NEW BOYINAPALLI, SECUNDERABAD, TELANGANA STATE. 2 VS,J CRP.No.1749 of 2024 ...RESPONDENT(S): Petition under Article 227 of the Constitution of India,praying that in the circumstances stated in the grounds filed herein,the High Court may be pleased toBeing aggrieved by the Docket Order dt. 16.04.2024 passed in I.A No. 1138 of 2023 in O.S No. 35 of 2016 on the file of the court of Learned XV Additional District Judge, Nuzvid, the above named petitioners prefer this memorandum of Civil Revision Petition for the following among other IA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to grant stay of operation of Docket Order dt. 16.04.2024 Passed in I.A No. 1138 of 2023 in O.S No. 35 of 2016 on the file of the Court of Learned XV Additional District Judge at Nuzvid, pending disposal of the main CRP and to pass Counsel for the Petitioner(S): 1. NIMMAGADDA REVATHI Counsel for the Respondent(S): 1. G VIVEKANAND The Court made the following: 3 VS,J CRP.No.1749 of 2024 ORDER: This Civil Revision Petition is filed under Article 227 of the Constitution of India by the petitioners/defendants aggrieved by the order passed by the learned XV Additional District Judge, Nuzvid, dated 16.04.2024 in I.A.No.1138 of 2023 in O.S.No.35 of 2016, whereby, the Court below allowed the application filed by the respondent No.1/plaintiff No.1 under Order XXVI Rule 9 and under Section 75 of the Code of Civil Procedure (for short „CPC‟), appointing an advocate commissioner to survey the land in R.S.Nos.6, 7/1, 8/1 and 8/2 of Mankollu village, Chatrai Revenue mandal, Eluru district with the assistance of Mandal Surveyor, Chatrai revenue mandal. 2. Brief facts of the case are as under: (a) For convenience, the parties will be referred to as they were arrayed in the suit. The mother of the plaintiffs by name Gandham Ramadevi, who is the possessor of the lands to an extent of Acs.5.51 cents in R.S.No.7/1 of Mankollu, Acs.2.04 cents in R.S.No.8/1 and 8/2 of Mankollu, executed a Will dated 04.06.1996 during her life time, in respect of her properties. Subsequent to her death, all the properties including the aforementioned, devolved upon the plaintiffs. Ever since, the plaintiffs were in continuous possession of the properties bequeathed upon them by way of the said Will. 4 VS,J CRP.No.1749 of 2024 (b) The land to an extent of Acs.8.75 cents in R.S.No.6 is abutting the aforementioned land admeasuring Acs.5.51 cents in R.S.No.7/1. The 1st plaintiff also owns another land admeasuring Acs.2.85 cents in R.S.No.7/1 of Mankollu which was purchased by way of a registered sale deed dated 29.04.1985 which was executed by late Gandham Ramadevi. The said Gandham Ramadevi also executed another registered sale deed dated 08.05.1989, in respect of Bandi Panduranga Vittal and his two brothers, in respect of the land admeasuring Acs.2.35 cents in R.S.No.7/1 of Mankollu, which is situated on the southern side of the land of the plaintiffs in R.S.No.7/1. The said Bandi Panduranga Vittal and others sold away the said land in favour of one Gandham Krishna Kishore by way of a registered sale deed dated 22.10.2005 who is the son of Gandham Krishna Rao, who in turn is the brother of the plaintiffs. The said Gandham Krishna Kishore sold away the said land admeasuring Acs.2.35 cents in R.S.No.7/1 in favour of the 3rd defendant by means of a registered sale deed dated 13.07.2009. As per the said sale deeds, there is a pathway of 4 yards width on the eastern side of the land admeasuring Acs.2.35 cents which was set apart as passage for plaintiffs to reach their own land. But, in the sale deed executed in favour of the 3rd respondent, the boundaries have been deliberately manipulated so as to suppress the existence of the said passage. Hence, the plaintiffs filed O.S.No.35 of 2016 against the defendants seeking the following prayer: 5 VS,J CRP.No.1749 of 2024 “a. For adeclaration that plaintiffs are the absolute owners of all the lands covered by items 1 to 4 of the plaint schedule in pursuance of the registered Will dt.4.6.96 executed by their mother, Gandham Ramadevi. b. For recovery of possession of item no.4 of the plaint schedule from the defendants 1 and 2. c. For recovery of possession of items nos.1 to 3 of the plaint schedule from the 3rd defendant. d. For a direction to the defendants 1 and 2 to pay past mesne profits of Rs.5,40,000/- to the plaintiffs for the period 2013 to 2016 together with subsequent interest at the rate of 18% per annum from the date of this suit till the date of realization thereof. e. For a direction to the 3rd defendant to pay past mesne profits of Rs.3,60,000/- to the plaintiffs for the period 2013 to 2016 together with subsequent interest at the rate of 18% per annum from the date of this suit till the date of realization thereof…” (c) The defendants contested the said suit by contending that they purchased an extent of Acs.4.70 cents in R.S.No.7/1 of Mankollu village from Mallemoggala Jagadeeswari and her children under two registered sale deeds dated 06.10.2008 and that the said Mallemoggala Jagadeeswari acquired the said land by virtue of a registered gift deed dated 26.03.2008 executed by her father by name Gandham Srihari Rao and his son. It was further contended that the 3rd defendant purchased an extent of Acs.2.35 cents in R.S.No.7/1 of Mankollu village from Gandham Krishna Kishore under a registered sale deed dated 13.07.2009. It is the case of the plaintiffs that the 3rd defendant is in possession and enjoyment of a land admeasuring Acs.0.40 6 VS,J CRP.No.1749 of 2024 cents in R.S.No.8/1 and 8/2; Acs.1.50 cents in R.S.No.6 of Mankollu village and that the defendant Nos.1 and 2 are in possession and enjoyment of Acs.1.50 cents in R.S.No.6 of Mankollu village. (d) As such, the plaintiffs filed I.A.No.1138 of 2023 before the Court below Order XXVI Rule 9 and under Section 75 of CPC, with a plea to appoint an Advocate Commissioner to measure the land in R.S.Nos.6, 7/1, 8/1 and 8/2 of Mankollu village, Chatrai Revenue mandal, Eluru with the help of surveyor, which was allowed by the Court below vide impugned order dated 16.04.2024. Aggrieved by the same, the defendants filed this revision petition. 3. When the civil revision petition came up for admission on 13.09.2024, this Court passed an interim order staying the operation of the impugned order dated 16.04.2024, passed in I.A.No.1138 of 2023 in O.S.No.35 of 2016, on the file of the learned XV Additional District Judge at Nuzvid. 4. Heard M/s Nimmagadda Revathi, learned counsel for the petitioners and M/s. G. Vivekanand, learned counsel for the respondents. 5. Appointment of Commissioner etc., is contemplated under Section 75 of Code of Civil Procedure and Order XXVI Rules 9 and 10 deals about the procedure to be followed by the Commissioner, which are extracted hereunder: 7 VS,J CRP.No.1749 of 2024 “Section 75 – Power of court to issue commissions: - Subject to such conditions and limitations as may be prescribed, the court may issue a commission- 1. to examine any person; 2. to make a local investigation; 3. to examine or adjust accounts; or 4. to make a partition; 5. to hold a scientific, technical, or expert investigation; 6. to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; 7. to perform any ministerial act. Order XXVI Rules 9 and 10: - 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: 10. Procedure of Commissioner.— (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (2) Report and depositions to be evidence in suit. Commissioner may be examined in person.—The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the 8 VS,J CRP.No.1749 of 2024 permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. (3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.” 6. Admittedly, the object of issuance of commission under Order XXVI Rule 9 of C.P.C., is to elucidate any matter in dispute but not to collect or gather evidence. An Advocate Commissioner cannot be appointed for making an enquiry about factum of possession of the property in dispute, which is nothing but fishing out evidence and not elucidating the matter in dispute. 7. It is to be noted that the power of the Court under Order XXVI Rule 9 of CPC is discretionary and the same has to be exercised in a judicious manner, depending on the facts and circumstances of each case. The Court 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. 8. While dealing with the issue of appointment of an Advocate Commissioner, a learned Judge of the erstwhile Common High Court for the State of Telangana and the State of Andhra Pradesh at Hyderabad, in Bandi 9 VS,J CRP.No.1749 of 2024 Samuel and another Vs. Medida Nageswara Rao1, while referring to a catena of cases observed as under: “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 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. 1 2017(1)ALD582 10 VS,J CRP.No.1749 of 2024 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 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. 11 VS,J CRP.No.1749 of 2024 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 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 12 VS,J CRP.No.1749 of 2024 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." 9. Undisputedly, 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. 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. 10. A perusal of the material available on record would show that there is a dispute with regard to the extent possessed by the defendants and the said dispute cannot be decided by the Court by mere recital of the documents available before it. It would not be possible to determine the rights of the parties by mere looking into the sale deeds relied upon by both the parties. As such, the Court below has rightly considered the application filed by the 13 VS,J CRP.No.1749 of 2024 plaintiffs for appointment of Advocate Commissioner for the purpose mentioned in the application filed by them. 11. In view of my foregoing discussion, I am of the view that the impugned order dated 16.04.2024 passed by the learned XV Additional District Judge at Nuzvid, in I.A.No.1138 of 2023 in O.S.No.35 of 2016 need not be interfered with by exercising the supervisory jurisdiction vested on this Court under Article 227 of the Constitution of India and the same is liable to be dismissed. 12. In the result, this civil revision petition is dismissed. There shall be no order as to costs. Consequently, miscellaneous applications, pending, if any, shall also stand closed. ___________________ JUSTICE V. SUJATHA Date:22.11.2025 Gss