THE HON’BLE SRI JUSTICE V ESWARAIAH CIVIL REVISION PETITION NOS.2127, 2130 AND 2131 OF 2010 COMMON ORDER: The parties in all the above three revisions are one and the same and the issue raised therein is similar, as such, these revisions are being disposed of together by this common order. These three revisions are filed questioning the orders passed in I.A. Nos. 547 of 2009, 548 of 2009 and 546 of 2009 dated 12.4.2010 on the file of the III Additional Senior Civil Judge (FTC), Visakapatnam rejecting the applications filed under Order 26 Rule 9 of CPC for re- entrustment of warrant to the earlier Commissioner appointed vide orders in I.A. No. 679, 682 and 678 of CPC to once again visit Survey Nos. 128 and 151/3 of Vepagunta village and localise the suit schedule property with the help of Ex.A.14 and Ex.A 28 i.e., village map and to note down the physical features and to submit the report. The petitioners herein are plaintiffs, they filed suits in O.S. No. 903 904 and 902 of 1999 for declaration of his right, title and recovery of possession and also for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the schedule property including making any constructions. During the pendency of the said suits, applications were filed for appointment of Advocate Commissioner for local inspection of the suit schedule property and to localise the same with reference to sale deed dated 21.5.1975 executed in his favour and to note down physical features and to take photographs of the schedule property. By orders dated 19.12.2000 an Advocate Commissioner was appointed, who in turn executed his warrant with the assistance of Mandal Surveyor and filed his report on 6.8.2001. The petitioners allege that the Advocate Commissioner has not taken into consideration the sale deed dated 25.1.1975 for localisation of the suit property in survey No.128 and without even visiting the survey no. 128 has erroneously came to the conclusion that the suit property is situated in survey number 151/3. It is contended that without conducting the total survey of both the survey numbers i.e., 128 and 151/3 or identifying the G-Line, F-Line and village authority stones, the Surveyor cannot come to a final conclusion to identify the suit schedule property. Hence, the petitioners filed applications to re- entrustment of warrant to the same Advocate Commissioner to make a local inspection once again and to localise the suit schedule property by inspecting both the survey numbers with the assistance of his registered sale deed and also village map. Before the Court below, respondents filed counter affidavit stating that petitioners have already filed applications under Order 26 Rule 9 of CPC for appointment of Advocate Commissioner and the said applications were allowed and the Advocate Commissioner and Mandal Surveyor visited the schedule property and executed the commission warrant and filed a report along with sketch. That the petitioners have filed their objections to the same and also availed an opportunity to cross examine the Commissioner and after conveniently utilising all the remedies and having failed therein, to ascertain and gather the evidence, filed the present applications to re-entrust the warrant to the same Advocate Commissioner which is not maintainable. Heard the learned counsel for petitioner at length and perused the material available on record. The suits are for declaration of right, title and recovery of possession and also for permanent injunction. The petitioners claim that they are in possession of the suit property and earlier on applications filed by them, an Advocate Commissioner was appointed for local inspection and to localise the suit property with reference to sale deed and the said Advocate Commissioner has executed the warrant with the assistance of Mandal Surveyor and filed his report along with sketch on 6.8.2001, for which the petitioners have filed their objections and also cross examined the said Advocate Commissioner and now conveniently alleges that the said Advocate Commissioner has not visited the survey no.128 and failed to take into consideration the sale deed in Ex.A-14 for localising the suit property in survey no.128 and erroneously came to the conclusion that the suit property is in survey no.151/3. The Court below on consideration of the matter dismissed the applications filed by the petitioners for re-entrustment of the matter observing that local investigation in the suit was already done and the Advocate Commissioner was examined by the petitioners on 30.7.2007 and now the petitioners are finding fault with the report alleging that it is erroneous, which at the belated stage cannot be accepted. That the scope of Order 29 Rule 9 CPS is to ascertain matter in dispute, market value of any property, mesne profit or damages etc, but issuing of Commissioner for investigating the fact that which of the party is in possession of property is beyond the scope of Order 26 Rule 9 CPC and the same has to be decided on appreciation of the evidence. For convenience sake, Order 26 Rule 9 is extracted hereunder; “COMMISSIONS TO MAKE LOCAL INVESTIGATIONS:-- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court; It is thus clear that in respect of suits which are pending, Commissioner can be appointed for scientific investigation, for the purpose of ministerial acts such as to note down the physical features etc and for sale of immovable property etc. But in the pending suits where the decree is yet to be passed based on the evidence adduced by either side, Advocate Commissioner cannot be appointed, which would amount to gathering of evidence, which cannot be permitted. I am of the opinion that in the case on hand, the applications are filed for reentrustment of similar warrant to the same Advocate Commissioner who was earlier appointed and submitted his report, which is nothing but gathering the evidence and if the same is permitted, nothing remains to be established in the suit. It is to be noted that the onus, burden and the duty of the plaintiff cannot be entrusted to the Advocate Commissioner. Hence, this Court is of the considered opinion that the petitioner herein is not entitled to seek the relief sought for and the Court below has rightly dismissed the subject applications. There is no illegality or irregularity in the orders under revision warranting interference of this Court. The revision petitions fail and accordingly the same are hereby dismissed. No costs. _____________ V ESWARAIAH,J DATE: 1.4.2011 TVK THE HON’BLE SRI JUSTICE V ESWARAIAH CIVIL REVISION PETITION NOS.2127, 2130 AND 2131 OF 2010 Date: 1.4.2011