HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 2334 OF 2011 DATED 28TH NOVEMBER, 2011 BETWEEN Kodamanchili Peda Chittiyya and ors …….Petitioners and Kondeti Sydu Baju and ors …… Respondents HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 2334 OF 2011 ORDER: This Civil Revision Petition is filed under Article 227 of the Constitution of India aggrieved by the order dated 13.06.2011 whereby the learned Principal Junior Civil Judge, Eluru, West Godavari District allowed the application in I.A.No. 411 of 2011 in O.S.No. 659 of 2006 filed by the respondents/defendants under Order XXVI Rule 9 CPC for appointment of an Advocate Commissioner. Briefly stated the facts of the case are that: the petitioners herein instituted the suit in O.S.,No. 659 of 2006 on the file of the learned Principal Junior Civil Judge, Eluru, West Godavari District seeking permanent injunction against the respondents/defendant from interfering with the suit schedule property. In the said suit, the Court below granted interim injunction in favour of the petitioners/plaintiffs by the order dated 8.5.2006 in I.A.No. 50 of 2006 filed therein. After filing the written statement, the Court below framed necessary issues and recorded the evidence of the petitioners/plaintiffs. At this juncture, the respondents/defendants filed the impugned application seeking appointment of an Advocate Commissioner to note down the physical features of the suit schedule land and to measure the same with the assistance of the Mandal Surveyor. The said application was resisted by the petitioners/plaintiffs. The Court below considering the material on record and controversy in between the parties, appointed the Advocate Commissione as sought for. Hence this CRP. The respondents have filed counter affidavit resisting the revision petition. It is stated in the counter affidavit that since the physical features of the suit schedule land and the existence of the constructions are disputed by the petitioners/plaintiffs, the respondents/defendants were constrained to file the impugned application for appointment of an Advocate Commissioner to note down the physical features and to measure the same with the assistance of the Mandal Surveyor, which does not cause any prejudice to the case of the petitioners/plaintiffs and on the other hand, it will be useful for effective adjudication of the lis. Heard. Perused the case file. It is submitted by the learned Counsel for the petitioners that in a suit for permanent injunction, an Advocate Commissioner cannot be appointed to note down the physical features of the land in dispute. He submitted that the suit schedule land is the ancestral property of the petitioners and as such the respondents/defendants have neither right nor possession over the suit schedule land. Per contra, the learned Counsel for the respondents/defendants while reiterating the averments made in their counter affidavit supported the impugned order passed by the Court below. In support of his contentions, he relied on the decision of this Court in Varala Ramachandra Reddy Vs. Mekala Yadi Reddy {2010 (4) ALD 198}. As can be seen from the provisions of Order XXVI CPC the appointment of an Advocate Commissioner in a suit for permanent injunction restraining the defendants therein to interfere with the peaceful possession of the plaintiff therein is not confined to any particular circumstances and that depending on the necessity in a suit Commissioners can be appointed even to note down the physical features. The appointment of Commissioners, however, would depend on the nature of relief claimed in the suit and that when the physical features of the suit schedule property are of hardly of any relevance in a suit for permanent injunction, the necessity to appoint a Commissioner does not arise in as much as the resultant report is prone to be used as a material to support the plea of possession etc., and therefore such a course of action is impermissible. In the case on hand, while it is the case of the petitioners/plaintiffs that the respondents/defendants have occupied the road margin in between the schedule property and panchayat road by constructing their respective houses, it is the case of the respondents/defendants that they have constructed the houses over the plaint schedule property. Further, the respondents/defendants took a plea in their written statement that the averments in the plaint are not correct. In those circumstances, the Court below appointed an Advocate Commissioner to note down the physical features of the suit schedule land and to measure the same with the assistance of the Mandal Surveyor. Order XXVI Rule 9 CPC would show no distinction of the suit in which the Advocate Commissioner can be appointed or rejected. In the said provision it is contemplated that if the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, an Advocate Commissioner can be appointed. In the case of Salla Eswaramma Vs.C.Subba Reddy (2009(2) ALT 59) this Court observed that Advocate Commissioner can also be appointed in a suit for permanent injunction to note down the physical features by making local inspection and that the report filed by the Advocate Commissioner so appointed pursuant to the application filed by the respondents in the suit filed by the petitioners is not exhaustive. Even in the case relied on by the learned Counsel for the respondents in Varala Ramachandra Reddy referred to above, it was held that an Advocate Commissioner can be appointed in a suit for injunction for local inspection of the suit site and to demarcate the suit property with the help of a surveyor and even to make an observation of level of lands as claimed by the parties. For the foregoing discussion, I do not see any illegality or infirmity in the order under revision warranting interference in this revision petition. The Civil Revision Petition fails and the same is accordingly dismissed. There shall be no order as to costs. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 28th November, 2011. Msnro