THE HON'BLE MR JUSTICE V ESWARAIAH CIVIL REVISION PETITION No.5127 of 2009 DT. 1.7.2011 Between: Suddapalli Krishna Murthy and another … Petitioners And Paleti Santha Kumar and others … Respondents Counsel for the Petitioners: Sri J Prabhakar Counsel for respondents: Sri K V R Krishna Sharma The Court made the following ORDER: THE HON'BLE MR JUSTICE V ESWARAIAH CIVIL REVISION PETITION No. 5127 of 2009 ORDER: The petitioners herein are plaintiffs and respondents are defendants. The plaintiffs filed a suit in O S No. 671 of 2001 for declaration that the width and length of passage shown as ‘DCEF’ in the plan annexed to the plaint as 6 feet width and 106 feet length respectively by canceling the decree dated 24.11.1998 passed in O.S. No. 809 of 1998 on the file of the III Additional Junior Civil Judge, Guntur and for declaration of exclusive rights over ABCD passage for ingress and aggress and for removal of the encroachment portion shown as GKEF. In suit the plaintiffs/petitioners herein have filed an application in I.A. No. 1156 of 2009 under Order 26 Rule 9 to appoint an Advocate Commissioner to note down the physical features and to take measurements of the properties of the respective parties to the suit, to locate the actual width and length of DCEF passage with the assistance of Municipal Town Surveyor and thereby identify the encroachment portion of GKEF as per the plaint plan. The said application was dismissed on the ground that appointment of Advocate Commissioner for the purpose of noting down the subsequent changed physical features of the alleged encroachment “GKEF” is not just and proper as it leads to collection of evidence and would cause prejudice. Hence, the present revision under Article 227 of the Constitution of India contending that if Advocate Commissioner is appointed, no prejudice would be caused. It is stated that the plaintiffs are owners of plot Nos. 3 and 4 and defendants are owners of plot nos. 1,2,5, 7 to 9 out of which plot Nos. 1,2, and 5 are by the side of the plaintiffs plots and after 6 feet width lane, plot nos. 7,8 and 9 are located. It is stated that plots of defendants 5, 6 and 7, plaintiffs 1 and 2 are on one side of the lane and on the other side of the lane plots belonging to defendants 1 to 4 and in between them there exists a lane of 6 feet width and 106 feet length. It is stated that during the cross examination, D.W.1 who is owner of plot nos. 6,7 and 8A said to have been stated that he has no objection for appointment of Court Commissioner to inspect the suit property and the width of the joint passage of 6 feet (3 +3 feet) and that he do not know the exact length of the joint passage. Thus, it is stated that there is no dispute as regards the 6 feet width of the passage and that the plaintiffs and defendants have a joint right of passage. It is stated that the defendants 1 to 4 encroached the joint passage to an extent of 3 feet and joint passage of 6 feet is shown as ABEF and the so called encroachment is shown as GKEF, therefore, it is stated that there cannot be any objection for appointment of Advocate Commissioner to measure the joint passage of 6 feet width earmarked in the plan ABEF and the alleged encroachment. The first defendant in the cross examination stated that there was no encroachment and width of the joint passage is 3+3 feet i.e., 6 feet but nowhere he has accepted about the alleged encroachment by the defendants shown in the plan as GKEF. There is no dispute with regard to existence of 6 feet joint passage and that both the plaintiffs and defendants have common and joint right to make use of the said passage and none of the parties are disputing about the existence of 6 feet passage. It is also stated that there cannot be any objection for local inspection and reporting to the Court about the width of the joint passage. Order 26 Rule 9 of CPC deals with appointment of Advocate Commissioner, and Order 26 Rule 9 read with Rule 10-B deals with performance of a ministerial act, for the sake of convenience they are extracted and reads as under; 9. 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: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. 10B. Commission for performance of a ministerial act (1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the Court. (2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9. In the instant case, an application in I.A. No. 1156 of 2009 under Order 26 Rule 9 to appoint an Advocate Commissioner to note down the physical features and to take measurements of the properties of the respective parties to the suit, to locate the actual width and length of DCEF passage with the assistance of Municipal Town Surveyor and thereby identify the encroachment portion of GKEF as per the plaint plan. This Court is of the considered opinion that such an prayer cannot be allowed as it would definitely amounts to gathering of evidence and having regard to the same, the Court below has rightly dismissed the application. However, since admittedly the dispute is only in regard to the encroachment of the common 6 feet passage, it would suffice if local inspection by an Advocate Commissioner in presence of both the parties is conducted and it would also do not cause any prejudice to the parties. As such, though the petitioners are not entitled for appointment of Advocate Commissioner as prayed for by them, an Advocate Commissioner can be appointed to render the clerical job of simply measuring the width of the joint passage in presence of both the parties as per the work memo and file a report. If any dispute is raised by either of the parties, the Advocate Commissioner so appointed by the Court, can make note of the same and submit a report to the Court. No doubt ultimately it is for the parties to establish and prove their pleadings. In the circumstances, the order under revision dated 9.10.2009 in I.A.No. 1156 of 2009 in O.S.No. 671 of 2001 is modified and the Court below is directed to appoint an Advocate Commissioner to the limited extent of simply measuring the width of the joint passage in presence of both the parties as per the work memo and to file a report. Accordingly, to the extent indicated above, the revision is allowed. No costs. ______________ V.ESWARAIAH,J DT.1.7.2011 TVK THE HON'BLE MR JUSTICE V ESWARAIAH CIVIL REVISION PETITION No.5127 of 2009 DT. 1.7.2011