IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD WEDNESDAY, THE TWENTY SECOND DAY OF JUNE TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4471 OF 2009 Between: Poreddi Venkatramana Reddy …Petitioner A n d S.Khajapeer and others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4471 OF 2009 ORDER: This civil revision petition is directed against the order dated 28.08.2009 in I.A.No.174 of 2009 in O.S.No.40 of 2007, on the file of the Senior Civil Judge, Madanapalle, wherein the said application filed by the respondents herein, the defendants, for appointment of an advocate- commissioner under Order XXVI Rule 9 CPC to dig the land and note down the existence of bones, was allowed. 2. Heard the learned counsel for the petitioner/plaintiff and the learned counsel for the respondents/defendants. Perused the record. 3. The petitioner filed the suit for declaration of title and for temporary injunction. According to the petitioner, the suit schedule land of 38 cents out of Ac.1-96 cents in Sy.No.223/2 of Angallu village is a private agricultural land belonging to him. The defendants are contending that the schedule land is a burial ground and is a wakf property. The plaintiff filed an application in I.A.No.234 of 2007 under Order XXXIX Rule 1 CPC for temporary injunction. The respondents/defendants contested the same by filing counter. After due enquiry, by order dated 17.01.2008, the trial Court made the interim injunction absolute. It is stated that the said order has attained finality. 4. When the matter was reaching the stage of trial, the defendants filed I.A.No.259 of 2007 seeking appointment of Commissioner to make local inspection and to note down the physical features and an advocate- commissioner was appointed for the said purpose. Both parties have filed work memos before the advocate- commissioner. After inspecting the suit land in the presence of the parties and duly answering the work memos, the advocate-commissioner filed his report for which both parties filed objections also. In the said report, the advocate-commissioner has noted that in a portion of the land there were traces of recent removal of demolition of certain tombs and he also found some loose soil at those places. Taking advantage of the said observation, the defendants filed the present application I.A.No.174 of 2009 seeking appointment of commissioner to dig the land and to note down the existence of tombs in the land. The petitioner/plaintiff filed a counter opposing the said application. The trial Court, by the impugned order dated 28.08.2009, allowed said petition and appointed Sri E.Raja Gopal Naidu, Advocate as Commissioner for the purpose of noting down the nature of the land and further advising him to take the help of labour and a doctor to see whether the bones, if any, found in the land are human bones or animal bones. Aggrieved by the same, the present civil revision petition is filed. 5. The suit is one for declaration of title and for injunction. The whole dispute is regarding identity of the land. The nature of land and the user of the same is disputed, in the sense that according to the plaintiff, it is a private agricultural land, whereas defendants would contend that it is a burial ground and a wakf property. The burden squarely lies on the plaintiff to establish his claim of title over the suit land. The defendants, of course, can adduce all the necessary evidence at their disposal to show that it was being used as a burial ground as claimed by them. Simply because the earlier advocate- commissioner found existence of traces of demolition of a few tombs in a portion of the land, digging of the entire land for the purpose of finding out the existence of bones underneath and to further examine whether those bones are of human or animal origin, is totally unwarranted. The impugned order does not specify as to the extent of the land that was required to be dug and, on the other hand, indicates that the entire suit land is to be dug out. The existence of the bones underneath and the source of their origin, is totally irrelevant for the purpose of determining the dispute in the suit. Further, digging out the tombs, if any, found on the suit land, in the absence of any proceedings for exhumation issued by competent Court under the relevant provisions of law, is totally uncalled for. Such digging of the tombs and examining the bones, if any, found therein would certainly cause prejudice and hurt the sentiments of the kith and kin of the deceased who were buried therein. Such an exercise, apart from being sensitive in its nature, is also uncalled for and unnecessary for the purpose of adjudicating the real dispute pertaining to title, especially when there is no dispute regarding the identity of the land. Whatever be the objects found or contained underneath the surface of the land, the parties can adduce necessary evidence in support of their respective claims over the land pertaining to the title for resolving the dispute regarding the title over the land whose identity is not disputed. The examination of the objects or contents lying underground below the surface of land is not required. 6. The impugned order, appointing a commissioner for the purpose as noted therein, is, therefore, unsustainable and is accordingly set aside. 7. In the result, the civil revision petition is allowed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 22nd June, 2011 Lrkm.