HON’BLE SRI JUSTICE GHULAM MOHAMMED C.R.P.No. 3417 of 2010 Date: 21-01-2011 Between: Bethapudi Shaik Aminulla and another. ………. Petitioners and Shaik Masthan Vali ……… Respondent HON’BLE SRI JUSTICE GHULAM MOHAMMED C.R.P.No. 3417 of 2010 ORDER This revision is directed against the order, dated 09-07-2010, in I.A.No.326 of 2010 in O.S.No.45 of 2010 on the file of the Principal Junior Civil Judge, Repalle, wherein the Court below allowed the I.A. filed by the respondent herein under Order 26 Rule 9 and Section 151 CPC, for appointment of an advocate commissioner to measure the plaint schedule land and western side road and to note the panta bode on the western side of the plaint schedule land situated in the road margin with the assistance of Mandal Surveyor with the help of revenue records and to file a report noting the physical features and measurements with plan etc. 2. The petitioners are the plaintiffs and the respondent is the defendant in O.S.No.45 of 2010. 3. For the sake of convenience, the parties herein after referred to as they were arrayed in O.S.No.45 of 2010. 4. Originally, the suit was filed for permanent injunction. While the suit was pending consideration, the defendant filed the above application with a prayer as stated supra. The Court below allowed the said application appointing an advocate commissioner to measure the schedule land etc. Challenging the same, the plaintiffs filed this revision petition contending that the Court below ought not to have appointed an advocate commissioner since no commissioner can be appointed to collect the evidence on either side, and that the defendant did not file even single document to show his right to draw water from the plaint schedule land, and he simply straight away filed the application for appointment of an advocate commissioner. In fact, there is no panta bode existing to the west of the plaint schedule land, but the defendant is trying to dig the same. Hence, there is no necessity for the defendant to draw water from the plaint schedule land to his land. Therefore, the appointment of advocate commissioner is not sustainable under the law. Hence, he prayed to allow the revision by setting aside the impugned order passed by the Court below. 5. Heard the learned counsel for the petitioners-plaintiffs and perused the material available on record. 6. As seen from the record, it is clear that the plaintiffs filed a suit against the defendant for permanent injunction. Pending consideration of the suit, the defendant filed this application. Before the Court below, the defendant contended that originally, there was a pantabode on the western side of the plaint schedule property, which is a poramboke land, and from the said pantabode, he has been drawing water to his lands which is only the source of irrigation to his land. But the plaintiffs closed the said pantabode and occupied the said land. and stopped the source of irrigation to the land of defendant. 7. Now the point for consideration is as to whether the defendant is entitled for the appointment of advocate-commissioner? 8. The main dispute is with regard to the existence of pantabode and if it is existing in the land of poramboke, is it the main source of irrigation to the land of defendant. Unless the commissioner is appointed, there is no possibility to know the existence of pantabode and also to ascertain the fact whether it is the main source of irrigation channel to the land of the defendant. The Court below, in its order, has clearly observed that the relief asked by the defendant does not amount to collection of evidence. Further in its order, the Court below relied upon a decision reported in Varala Ramachandra Reddy Vs. Mekala Yadi Reddy and others[1], wherein it was held that the commissioner cannot be appointed to find out as to who is in possession of the property but he can be appointed to make local investigation to ascertain the facts or other material which are found in the property to make a report in regard to that matter to the Court and the commissioner can be appointed to demarcate and fix the boundaries between the parties with the help of surveyor. 9. From a perusal of the above observation, it is clear that under Order 6 Rule 9 CPC, it is purely discretion of the Court below to appoint an advocate commissioner. Hence, it is for the Court below to exercise its jurisdiction to appoint the commissioner. The Court below after considering the entire material came to the right conclusion and passed the impugned order, which in my considered view, is a well reasoned and sustainable under the law. There is no necessity for this Court to interfere with the same by invoking extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. 10. Hence, I do not find any legal infirmity or illegality in the order passed by the Court below in appointing an advocate commissioner. The revision is liable to be dismissed. 11. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. ___________________________ Justice Ghulam Mohammed Date: 21-01-2011 KVR [1] 2010 (2) L.S. 172