THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.3366 of 2010 ORDER This civil revision petition is directed against the order dated 08-02-2010 in I.A.No.51 of 2010 in O.S.No.19 of 2008 on the file of the Junior Civil Judge, Nidadavolu, wherein the said application filed by the respondents- defendants under Order XXVI Rule 9 CPC, seeking appointment of survey knowing Commissioner to measure the plaint schedule property and also to ascertain the shares of the plaintiff and defendants and to note the nature of the topography of the land, was allowed. Heard the learned counsel for the petitioner-plaintiff. None appeared for the respondents-defendants though served with notice. Perused the records. The petitioner-plaintiff filed the suit for permanent injunction restraining the respondents-defendants from interfering with her possession and enjoyment over the schedule property to an extent of Ac.0-66 cents of land out of Ac.1.32 cents situate in R.S.No.39/3 of D.Muppavaram Village. According to the plaintiff, her husband’s sister bequeathed the suit property in favour of her husband and his brother under a Will and the same was divided into two equal shares. After the death of plaintiff’s husband in 1993, the plaintiff’s children gave the schedule property to the plaintiff for her maintenance and pattadar pass book was also issued in her favour and her name was mutated in the revenue records. The plaintiff pleads that she is in possession and enjoyment of the schedule property by paying land revenue. She alleges that since September, 2000, the defendants have been making attempts to trespass into the schedule property. The defendants filed a written statement disputing the plaintiff’s claim of possession and enjoyment. After necessary issues were settled, the trial of the suit was commenced. Learned counsel for the petitioner states that recording of evidence on both sides was completed and arguments were also heard in the matter. At that stage, the defendants filed I.A.No.51 of 2010 seeking appointment of a survey knowing Commissioner for the purpose of measuring the plaint schedule property and also for ascertaining the shares of the plaintiff and first defendant and for noting the topographical features. In the affidavit filed in support of the application, it is stated that the defendants have constructed a house in ‘ADEF’ portion of the suit land and the first defendant has sold Ac.0-03 cents on the south-west corner of ‘ABCD’ schedule property to the second defendant under a registered sale deed dated 23-12-2000 and as such, it is necessary to appoint a survey knowing Commissioner to inspect the property, measure the entire ABCD marked land and also to note the shares of the plaintiff and the first defendant. The petitioner-plaintiff filed counter-affidavit stating that the application is filed at the fag end of the proceedings only to gather evidence. The suit being one for permanent injunction, the burden lies on the plaintiff to establish that she is in possession and enjoyment of the suit property. The defendants claim right of ownership and possession over the suit schedule property. The defendants are seeking appointment of Commissioner virtually for the purpose of knowing as to the alleged division of the suit property and their respective possession and enjoyment of the same by the plaintiff and D1. It is well settled that a Commissioner cannot be appointed for the purpose of ascertaining as to who is in possession of the disputed property. The identity of the land is not in dispute. The dispute relates to possession and enjoyment in respect of portion of the schedule property. Obviously, the Commissioner by making a local inspection cannot express any opinion as to who is in possession and enjoyment of the schedule property as the same has to be decided by the Court on the basis of the evidence adduced during the course of the trial. The purpose for which the appointment of the Commissioner is sought by the defendants, as stated in their affidavit, is clearly in the nature of an attempt to gather evidence regarding the alleged possession and enjoyment of the different portions of schedule property. The Commissioner cannot be appointed for such a purpose as the disputed question of possession and enjoyment over the plaint schedule property has to be necessarily decided by the Court based on the evidence available on record. The appointment of the Commissioner for the purpose prayed for in a suit for injunction that too, at the stage when the matter has reached the stage of arguments is wholly unsustainable. The impugned order is, therefore, liable to be set aside and is accordingly set aside. In the result, the civil revision petition is allowed. No costs. ____________________ G.V.SEETHAPATHY,J rkk Dated: 12-7-2011