1 VS,J CRP.No.2976 of 2023 APHC010580092023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] THURSDAY,THE SIXTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA CIVIL REVISION PETITION NO: 2976/2023 Between: 1. REYAZ, S/O LATE MAJEEZ SAB, AGED 49 YEARS, OCC AGRICULTURE, R/ O. LAKKEPALLI VILLAGE, LEPAKSHI MANDAL, SRI SATHYA SAI DISTRICT ERSTWHILE ANANTAPUR DISTRICT. 2. BUDDEN SAB,, S/O. HUSSAIN SAB, AGED 75 YEARS, OCC AGRICULTURE, R/O. LAKKEPALLI VILLAGE, LEPAKSHI MANDAL, SRI SATHYA SAI DISTRICT ERSTWHILE ANANTAPUR DISTRICT. 3. PEERU SAB,, S/O. HUSSAIN SAB, AGED 69 YEARS, OCC AGRICULTURE, R/O. LAKKEPALLI VILLAGE, LEPAKSHI MANDAL, SRI SATHYA SAI DISTRICT ERSTWHILE ANANTAPUR DISTRICT. ...PETITIONER(S) AND 1. SMT M LAKSHMI DEVAMMA, , W/O. B.N.LATE MOPI REDDY AGED 66 YEARS, OCC AGRICULTURE, R/O.D.NO.5-30, MAIN ROAD, BAYANNAPALLI, KANCHISAMUDARAM, LEPAKSHI MANDAL, SRI SATHYA SAI DISTRICT ERSTWHILE ANANTAPUR DISTRICT. 2. M ANANDA REDDY, S/O. B.N.LATE MOPI REDDY, AGED 45 YEARS, OCC AGRICULTURE, R/O.D.NO.5-30, MAIN ROAD, BAYANNAPALLI, KANCHISAMUDARAM, LEPAKSHI MANDAL, SRI SATHYA SAI DISTRICT ERSTWHILE ANANTAPUR DISTRICT. 2 VS,J CRP.No.2976 of 2023 ...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 tobegs to present this memorandum of Grounds of Civil Revision petition being aggrieved by the order dated 18-10-2023 passed in Ia.No 309 of 2023 in IA.No 623 of 2022 in .S.No.536 of 2022 on the file of Addl. Junior Civil Judge, Hindupur, IA NO: 1 OF 2023 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 pleased to suspend the operation of order dated 18.10.2023 passed in lA.No.309 of 2023 in lA.No. 623 of 2023 in O.S.No.536 of 2022 on the file of the Addl. Junior Civil Judge, Hindupur and further staying all further proceedings in O.S.No. 536 of 2022 on the file of the Addl. Junior Civil Judge, Hindupur, pending disposal of the C.R.P.No of 2023 and to pass Counsel for the Petitioner(S): 1. P NARAHARI BABU Counsel for the Respondent(S): 1. PILLIX LAW FIRM The Court made the following: 3 VS,J CRP.No.2976 of 2023 ORDER: This Civil Revision Petition has been filed by the petitioners/plaintiffs challenging the order dated 18.10.2023 passed in I.A.No.309 of 2023 in I.A.No.623 of 2022 in O.S.No.536 of 2022 on the file of Court of the Additional Junior Civil Judge, Hindupur, whereby the trial Court allowed the I.A.No.309 of 2023 filed under Order XXVI Rule 9 of the Code of Civil Procedure (for short „CPC‟) by the respondents/defendants, by appointing an Advocate Commissioner to measure the petition schedule property, to fix the boundaries and to note down the physical features of the petition schedule property. 2. Brief facts of the case are as under: The petitioners/plaintiffs filed the aforesaid suit seeking permanent injunction for restraining the respondents/defendants from interfering with the suit schedule property. The petitioners/plaintiffs filed I.A.No.623 of 2022 in O.S.No.536 of 2022 seeking temporary injunction against the respondents/defendants in respect of the suit schedule property. Pending the said interlocutory application, the respondents/defendants filed I.A.No.309 of 2023 in I.A.No.623 of 2022 under Order XXVI Rule 9 of CPC requesting the Court below to appoint an Advocate Commissioner to measure the petition schedule property, fix boundaries and to note down the physical features of 4 VS,J CRP.No.2976 of 2023 the petition schedule property with the assistance of Government Surveyor. The trial Court, after considering the rival contentions, came to a conclusion that appointment of an Advocate Commissioner would be just and necessary as there is a serious dispute with regard to the possession of the suit schedule property. Hence, the trial Court allowed the application filed by the respondents/defendants vide order dated 18.10.2023, which is impugned in the present revision petition. 3. When the revision petition came up for admission on 23.11.2023, this Court granted an interim order suspending the operation of the order dated 18.10.2023 in I.A.No.623 of 2022 in O.S.No.536 of 2022 on the file of Additional Junior Civil Judge, Hindupur, initially for a period of two (2) weeks, which was extended thereafter from time to time. 4. Heard Mr. P. Narahari Babu, learned counsel for the petitioners and M/s. Pillix Law Firm, for the respondents. 5. A perusal of the plaint filed by the petitioners/plaintiffs under Order VII Rule 1 and 2 and under Section 26 of CPC would go to show that the suit schedule property, to a total extent of 11.30 cents, allegedly belongs to late Hussain Sab who has enjoyed the same during his life time. Late Hussain Sab left behind his sons namely Majeez Sab (father of petitioner No.1/plaintiff No.1), Buden Sab (petitioner No.2/plaintiff No.2) and Peeru Sab (petitioner 5 VS,J CRP.No.2976 of 2023 No.3/plaintiff No.3). The petitioners/plaintiffs partitioned the suit schedule property and are in continuous possession thereafter. It is alleged in the plaint that the respondents/defendants started to interfere with the peaceful possession of the petitioners over the suit schedule property, as such, they were constrained to file the subject suit seeking permanent injunction. 6. The respondents/defendants have contested the subject suit by filing a written statement wherein it is alleged that originally, the land to a total extent of Acs.50.97 cents belongs to Venkatappa, Narayanappa, Chinna Venkatappa, Venkataramanappa, Chinnappa, Nadepeerappa, Ulakallappa, Beerappa, Fakruddin of Nayanapalli village who have purchased the same from one Venkataswamy of Hindupur village vide registered sale deed bearing document No.388/1945, dated 19.03.1945. As per the said document, each of the aforesaid persons acquired Acs.5.66 cents. It is further alleged in the written statement that the husband of the respondent No.1/defendant No.1 and father of respondent No.2/defendant No.2 by name B.N. Mopi Reddy, is the son of Nadipeerappa who acquired Acs.5.66 cents pursuant to the sale deed dated 19.03.1945. Out of the said extent of Acs.5.66 cents, the said Nadipeerappa, during his lifetime sold Acs.1.07 cents under registered document No.895/1945, dated 25.05.1945, however, the remaining extent of land i.e. Acs.4.59 cents is in possession of the said Nadipeerappa which was enjoyed by him during his lifetime. Thereafter, the said property was acquired 6 VS,J CRP.No.2976 of 2023 by the respondents/defendants being the legal heirs of Nadipeerappa. Thereafter, respondent No.2/defendant No.2 purchased the land to an extent of Acs.2.43 cents in Sy.Nos.65-3, 73-2 from one Bayannagari lakshmamma who is the daughter of Venkataramappa and daughter in law of Chinnappa (parties in the sale deed dated 19.03.1945). As such, the respondents/defendants alleged that they are the rightful owners of the land to an extent of Acs.7.02 cents. 7. The respondents/defendants filed I.A.No.309 of 2023 in I.A.No.623 of 2022 in O.S.No.536 of 2022 alleging that except C.Narayana Reddy S/o Venkatappa, who allegedly sold Acs.2.83 cents in favour of Buden Sab (petitioner No.2/plaintiff No.2) vide document bearing No.2176 of 1981, no co- owners in the document bearing No.388 of 1945 have executed any sale deed in favour of the petitioners/plaintiffs or their ancestors. As such, it is the case of respondents/defendants that the petitioners/plaintiffs have no right over the remaining extent of land i.e. Acs.2.83 cents. As such, the respondents/defendants submitted a representation to the concerned authorities to cancel entries in the revenue records that are in favour of the petitioners/plaintiffs and to survey the suit schedule property. But, the petitioners/plaintiffs refused for conducting a survey. As such, in order to ascertain the suit schedule property, to fix boundaries and to note down the physical features of the same, the respondents/defendants filed I.A.No.309 of 7 VS,J CRP.No.2976 of 2023 2023 in I.A.No.623 of 2022 in O.S.No.536 of 2022 Order XXVI Rule 9 of CPC. Appointment of Commissioner etc., is contemplated under Section 75 of CPC and Order XXVI Rules 9 and 10 deals about the procedure to be followed by the Commissioner, which are extracted hereunder: “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 8 VS,J CRP.No.2976 of 2023 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 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.” 8. Admittedly, the object of issuance of commission under Order XXVI Rules 9 and 10 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. 9. In Bandaru Mutyalu Vs. Palli Appalaraju1, learned single Judge of composite High Court 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 1 2013 (6) ALT 26 9 VS,J CRP.No.2976 of 2023 Commissioner and go to trial prepared and the object of local investigation under Order XXVI, Rule 9 of the Code which cannot be littled. 10. Order XXVI Rule 9 CPC confers discretion on the trial Court to appoint or not to appoint a commissioner to make local investigation. They could exercise such discretion only after they find a prima facie case and when it holds the opinion that a local investigation could be required or could be said to be proper for the purpose of elucidating any matter in dispute. In the case on hand, the petitioners/plaintiffs contend that the suit schedule property is acquired by them through their ancestors and the respondents/defendants contend that the petitioners/plaintiffs encroached the land to an extent of Acs.2.83 cents of which they have no right. When the rival evidence is placed before the trial Court, it has to appreciate the evidence. While doing so when the trial Court felt that an accurate description of the physical features of the property would enable it to appreciate the evidence on record then the same cannot be said amounting to collection of any evidence. 11. As could be seen from the operative portion of the order of the Court below, it directed to measure the petition schedule property, fix boundaries and to note down the physical features of the same and nothing more. Thus, the trial Court was very circumspect and was aware of the fact that the process of the Court should never be used for collection of evidence. In view 10 VS,J CRP.No.2976 of 2023 of the same, this Court finds no erroneous exercise of discretion by the Court below. 12. Accordingly, 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:06.11.2025 Gss