THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.6116 OF 2009 Date: 19.12.2011 Between: J. Vimalabai … Petitioner And B. Narendra … Respondent THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.6116 OF 2009 O R D E R : The revision petitioner is the plaintiff in O.S.No.133 of 2002 on the file of the Court of VI-Addl. Senior Civil Judge (FTC), Medchal, Rangareddy District. This Civil Revision Petition is preferred under Article 227 of the Constitution of India aggrieved by the order dated 25.11.2009 passed by the Court below appointing an advocate- commissioner at the instance of the defendant to measure the lands of both the parties with the help of a qualified surveyor. The facts, in brief, are as under: The revision petitioner/plaintiff filed O.S.No.133 of 2002 against the respondent herein/defendant for injunction restraining from interfering with the suit schedule land admeasuring Ac.1-28 guntas i.e., 34 guntas of land situated in Sy.No.58/A and another extent of 34 guntas situated in Sy.No.58/B of Suthariguda Village, Medchal Mandal, Rangareddy District. The defendant contested the suit claim disputing the ownership claimed by the plaintiff in respect of the suit schedule land. It was contended by the defendant that in fact he had purchased Ac.2-23½ guntas in Sy.No.59 and Ac.0-17 guntas in Sy.No.60 of Suthariguda Village. While pleading that the defendant’s property is bounded by the property of the plaintiff, it is alleged that the plaintiff himself was trying to encroach upon the land of the defendant. While the matter was coming up for the evidence on the side of the defendant, he filed I.A.No.515 of 2009 under Order 26 Rule 9 of C.P.C. for appointment of an advocate-commissioner to measure the lands in Sy.Nos.59 & 60 and to fix up the boundaries with the help of the Government Surveyor. In the affidavit filed in support of the said application, it was pleaded that the total extent of Sy.No.59 is Ac.2-34 guntas and the total extent of Sy.No.60 is Ac.1-21 guntas. It was also pleaded that in view of the dispute between the parties with regard to the boundaries of Sy.Nos.59 & 60, it is just and necessary to appoint an advocate-commissioner to measure the lands in Sy.Nos.59 & 60 with the help of the Government Surveyor for fixing up the boundaries to the said land. Though the plaintiff/revision petitioner opposed, the Court below allowed I.A.No.515 of 2009 and appointed the advocate- commissioner to measure not only the lands situated in Sy.Nos.59 & 60 as sought by the defendant but also the lands in Sy.No.58/A and 58/B claimed by the plaintiff with the help of a qualified surveyor and to fix the boundaries as per the registered sale deeds of both the plaintiff and the defendants. The said order dated 25.11.2009 is under challenge in this Revision Petition filed by the plaintiff. I have heard the learned counsel for both the parties and perused the material available on record. There can be no dispute about the well settled principle of law that in a suit for injunction a Commissioner cannot be appointed to find out as to who is in possession of the property since the same would amount to collecting evidence in favour of one of the parties to the suit. However in appropriate cases it is open to the Court to direct local investigation by a Commissioner if in the facts and circumstances the Court comes to a conclusion that local investigation is necessary for obtaining evidence which from its peculiar nature can only be had by local investigation. As could be seen from the affidavit filed by the defendant in support of the application for appointment of Commissioner, his plea was that there was a dispute between the plaintiff and the defendant regarding the boundaries of Sy.Nos.59 & 60 and therefore it is necessary to fix up the boundaries of the said survey numbers. It was also specifically pleaded by him that the total extent of Sy.Nos.59 & 60 is Ac.2-34 guntas and Ac.1-21 guntas respectively. Out of the said land, the claim of the defendant appears to be to the extent of Ac.2- 23½ guntas in Sy.No.59 and Ac.0-17 guntas in Sy.No.60. Thus it is clear that the request of the defendant was only for measuring the lands in Sy.Nos.59 & 60 and for fixation of the boundaries of the said land. However, under the impugned order the Court below appointed the advocate-commissioner to measure not only the lands in Sy.Nos.59 & 60 but also the lands in Sy.Nos.58/A & 58/B and fixation of boundaries as per the registered sale deeds of both the parties. As rightly submitted by the learned counsel for the petitioner, the appointment of Commissioner for the purpose of measuring the lands of both the plaintiff and the defendant and fixation of boundaries is unwarranted and in fact it would amount to collection of evidence on the basis of the Commissioner’s report which is impermissible under law. Therefore, it would be appropriate to confine the survey only to the extent of the lands in Sy.Nos.59 & 60 as sought by the defendant. Accordingly, the order under Revision is hereby modified directing the advocate-commissioner appointed by the Court below to measure the lands in Sy.Nos.59 & 60 of Suthariguda Village and fix up the boundaries with the help of the Government Surveyor. Civil Revision Petition is accordingly disposed of. No costs. ______________ G. ROHINI, J Date: 19.12.2011 GBS