IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE EIGHTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2942 OF 2010 Between: Narsing Gopamma & 4 others ..... Petitioners And Narsing Peda Satyam …Respondent The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2942 OF 2010 ORDER: The Civil Revision Petition is directed against the order in I.A.No.82 of 2010 in O.S.No.82 of 2007, on the file of the Senior Civil Judge’s Court, Miryalaguda, dated 19.04.2010. 2. Though the sole respondent/defendant is served with notice before admission of this Civil Revision Petition, none entered appearance for the respondent and hence, the learned counsel for the revision petitioners is heard. 3. The plaintiffs in O.S.No.82 of 2007, on the file of the Senior Civil Judge’s Court, Miryalaguda, filed I.A.No.82 of 2010 for the appointment of an Advocate Commissioner for noting the physical features of the petition schedule property by taking photographs and videographs of the said property as well as by recording the quantum of work carried out till then. The subject property is Acre 0.30 guntas in S.No.206 of Nandipahad Village. The plaintiffs claim that in the suit for partition and separate possession in respect of the suit properties against the respondent herein and 5 others, they obtained an ex parte temporary injunction against alienation of the suit properties which was later made absolute, but the suit was later dismissed for default on 22.06.2009. It was restored to file as per orders in I.A.No.415 of 2009, dated 24.08.2009. In the interrugnum, the defendants tried to alienate some of the properties. The plaintiffs issued a public notice in newspapers on 15.08.2009 cautioning any gullible purchasers. However, the respondent transferred some pieces of land in favour of third parties under registered Document Nos.2708, 2690 and 2594 of 2009 and the plaintiffs filed I.A.No.5 of 2010 to implead the purchasers. As the defendants were changing the physical features of the properties by converting them into house plots, the plaintiffs filed I.A.No.783 of 2009 for the appointment of a Receiver, against the dismissal of which a revision is pending before the High Court. However, the respondent was proceeding to construct a complex of apartments in Acre 0.15 guntas out of Acre 0.30 guntas in S.No.206 of Nandipahad Village in spite of objections by the plaintiffs and had in fact raised pillars to a height of 4 feet and material was dumped at the property and hence, the Petition. The plaintiffs also filed I.A.No.69 of 2010 to keep the petition schedule property in the same state. 4. The respondent herein opposed the application contending that the respondent is living in the house constructed in the petition schedule property since much earlier to the suit and the plaintiffs failed in all the interlocutory applications in the suit. The plaintiffs were dragging on the matter and after disposal of the suit schedule land by the plaintiffs under Document Nos.283 of 2006, 542 of 2005 and 1230 of 2005 before the suit, the plaintiffs are trying to take the land of the defendants 1 and 6 in the suit. The respondent further claimed that as his house became old, he demolished the same and he is reconstructing a new house in the petition schedule property and the plaintiffs cannot interfere with the same in any manner. As the nature of the suit property is not changed in any manner, the petition is not maintainable. 5. During the enquiry into the application, the trial Court marked Exs.P-1 to P-8 and R-1 to R-4. 6. The trial Court rendered the impugned order noting the rival contentions and documents and observing that Exs.-P1 to P-7- photographs claimed to have been taken on 07.04.2010 show the construction of a pacca house going on in the petition schedule property and the respondent also filed Ex.R-1-building permission for construction of the new house along with Ex.R-4-clarification from the Gram Panchayat about the dates in Ex.R-1-building permission. The trial Court, therefore, found that even the defendants are agreeing that if item No.4 of the suit schedule properties is found to be liable for partition, the benefits of any development made therein will also automatically go to the plaintiffs on working out the equities between the parties. Noting that possession of one sharer amounts to possession of all the sharers, the trial Court felt that the application should fail on facts and in law. 7. The dismissal of the application, accordingly, led the plaintiffs to approach this Court with this revision contending that the trial Court ought to have appointed a Commissioner to enable keeping the suit properties in tact for partition in the event of the suit being decreed and committed a jurisdictional error in not exercising its judicial discretion under order XXVI Rule 9 of the Code of Civil Procedure, 1908. 8. The point for consideration is whether the refusal of the trial Court to appoint an Advocate Commissioner deserves interference in revision? 9. The main purpose for requesting for the appointment of an Advocate Commissioner was to note down the physical features of the petition schedule property by taking photographs and videographs of the petition schedule property as well as by recording the quantum of work carried out till the filing of the application. However, the petitioners/plaintiffs themselves have got such photographs taken which were marked as Exs.P-1 to P-7 and also have brought a CD recorded, marked as Ex.P-8, showing the construction of the new house by raising the concrete pillars, etc. As noted by the trial Court, Exs.P-1 to P-8 clearly show what was going on at the petition schedule property by 07.04.2010 while the application was dated 25.03.2010. If the physical features of the petition schedule property were, thus, recorded and placed before the trial Court through Exs.P-1 to P-8, any appointment of an Advocate Commissioner to note the physical features of the petition schedule property will be superfluous and redundant. It is open for the petitioners/plaintiffs to prove Exs.P-1 to P-8 in the suit or in any relevant interlocutory proceedings, in an appropriate manner and there is no further pleading to make any local investigation for elucidating any other matter in dispute. If so, apart from the reasons assigned by the trial Court for not accepting the request for the appointment of an Advocate Commissioner, any exercise of the restricted revisional jurisdiction is not called for in the light of Exs.P1 to P8. 10. The revision must, accordingly, fail and has to be dismissed without costs. However, it is made clear that any observations made in the impugned order or herein shall not operate to the prejudice of the merits of the rival contentions in the suit or in the other interlocutory proceedings. 11. The Civil Revision Petition is dismissed accordingly. There shall be no order as to costs. _____________________ G. BHAVANI PRASAD, J Date: 8th November, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2942 OF 2010 November 8, 2010. KL