IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4888 OF 2009. Date:20.11.2009. Between:- Sri Kandula Kondala Rao and another ..Petitioners/Petitioners/defendants And Kum Vankara Mariyamma .. Respondent/Respondent/plaintiff ORDER:- This C.R.P. is directed against the order dated 17.09.2009 passed in I.A.No.3027 of 2006 in O.S.No.73 of 2005 on the file of the Principal Junior Civil Judge, Vizianagaram, wherein the petition filed by the revision petitioners/defendants under Or.26 Rule 9 of C.P.C., for appointment of Advocate Commissioner to make local inspection of the plaint schedule property and note the physical features thereof, was dismissed. Heard the learned counsel for the revision petitioners- defendants. None appears for the respondent/plaintiff though served with notices. Perused the records. The respondent/plaintiff filed the suit for permanent injunction restraining the revision petitioners-defendants from interfering with her possession and enjoyment of the plaint schedule property of Ac.1.42cs in Survey No.3-10 B, Ac.0-04cs in Survey No.4-3 and Ac.0-40cs in Survey No.4-4 totaling to Ac.1- 86cs of dry land situate in Majisahobpeta village. According to the plaintiff, the plaint schedule land was assigned in favour of her mother-Vankara Polamma under D form patta on 03.10.1989 and ever since the said Polamma was cultivating the same and after her death on 03.05.1998, she has been cultivating the plaint schedule land. She alleges that the defendants, without having any right, title or interest, have been interfering with her possession and enjoyment of the plaint schedule land. The defendants filed a written statement denying the plaintiff’s title and possession in respect of the entirety of the plaint schedule land and contending that they were assigned Ac.0-42cs each in Survey No.3/10 under D-Form patta by the M.R.O, Vizianagarm in August, 1991. Ever since they have been in possession and enjoyment of the said extent of Ac.0-84cs in Survey No.3/10. They further allege that the plaintiff has leased out her land of Ac.0-62cs to one B.Sanyasi Rao and Adinarayana, who are cultivating the same and they have been interfering with their possession and enjoyment of their extent of Ac.0-84cs assigned to them under D-form patta. They further plead that the plaintiff is not entitled for an injunction, as she is not in possession of the entire extent of the plaint schedule land in Survey No.3/10. They however allege that after obtaining exparte interim order of injunction, the plaintiff has removed the survey stones planted by the surveyor, while demarcating the land assigned to them and the plaintiff is also attempting to remove the field bunds, in order to project as if the entire land is in one plot. Therefore, they sought appointment of Advocate Commissioner to make a local inspection of the plaint schedule land and to note the physical features thereof. Earlier, they filed I.A.No.3027 of 2006 for the said purpose and the said petition was dismissed by order dated 03.07.2007. Aggrieved by the same, they filed C.R.P.No.3671 of 2007 and this Court, by order dated 05.02.2008, set aside the order dated 03.07.2007 and remanded the matter to the trial court with a direction to decide the matter afresh. Subsequently, after remand, the trial court again, by the impugned order dated 17.09.2009, dismissed the said application. Aggrieved by the order dated 17.09.2009, the present revision petition is filed. In the impugned order, the trial court observed that there is no controversy relating to the identity of the schedule property and there is no dispute regarding the boundaries. The trial court dismissed the application mainly on the ground that the plaintiff and defendants are claiming possession by virtue of D form pattas granted in their favour and the question is one relating to proof of pattas and the parties have every opportunity to prove the same by way of oral and documentary evidence, and therefore, there is no need for appointment of Advocate Commissioner. The defendants are specifically disputing the identity of the property as claimed by the plaintiff and are also disputing the boundaries. The plaintiff is claiming that she is in possession of Ac.1.42cs and that the defendants were assigned Ac.0-42cs each in the same survey number, which forms part of Ac.1.42cs claimed by the plaintiff. There is clearly a dispute regarding the extent of the land claimed by the plaintiff and the defendants and also the location of the land and its boundaries. Further, the specific allegation of the defendants is that under the guise of the exparte interim injunction, the plaintiff has already removed the survey stones, which were planted by the revenue officials at the time of delivering possession of the land allotted to them under D form pattas and the plaintiff is now attempting to remove the field bunds also to make it appear that the entire extent of Ac.1.42cs is in one plot so as to obliterate the physical features showing the separate existence of the plots assigned to them by the M.R.O. Under those circumstances, the appointment of Advocate Commissioner to make the local inspection of the schedule land and note its physical features would be of immense help and assistance to the Court to arrive at just and reasonable decision regarding the rival contentions of the parties, especially in view of the dispute raised over the identity, extent of the land and also the boundaries. The impugned order of the learned Junior Civil Judge in dismissing the application for appointment of Advocate Commissioner is, therefore, unsustainable and it is considered to be a fit case where an Advocate Commissioner can be appointed for the purpose of making the local inspection and to note the physical features and file the report. The Advocate Commissioner, that may be appointed by the trial court, shall execute the warrant after giving prior notice to both the parties. The impugned order dated 17.09.2009 passed in I.A.No.3027 of 2006 in O.S.No.73 of 2005 is, accordingly, set aside. Consequently, the said petition is allowed with a direction to the trial court to appoint the Advocate Commissioner for the purpose stated above. However, it is open to the trial court to fix the fees of the Advocate Commissioner as deemed fit and proper. Accordingly, the C.R.P. is allowed. There shall be no order as to costs. ____​______________ G. V. SEETHAPATHY, J 20th November, 2009 Note:- Furnish C.C. within two days. B/O. AMD