THE HON’BLE SRI JUSTICE V ESWARAIAH C.R.P. NO. 639 OF 2010 DATE: 27.1.2011 BETWEEN: Jajula Kuncha Rao petitioner And Kada Kannayya and ors respondent Counsel for the petitioner : Mr K.V. Simhadri Counsel for the respondents 1 and 2: Mr K.V.N.Bhupal Counsel for respondents 3 and 4 : None The Court made the following order: THE HON’BLE SRI JUSTICE V ESWARAIAH C.R.P. NO. 639 OF 2010 ORDER: This revision is filed against the order dated 16.12.2009 in I.A. No. 733 of 2007 in O.S. No. 659 of 2006 by the Junior Civil Judge, Gajuwaka, Visakapatnam dismissing an application filed under Order 26 Rule 9 read with section 151 of CPC to appoint an Advocate Commissioner to survey the suit schedule property with assistance of the Mandal Surveyor. The petitioner herein is plaintiff, who filed a suit in O S No. 659 of 2006 on the file of the Junior Civil Judge, Gajuwaka, for grant of permanent injunction restraining the respondents from interfering with his peaceful possession and enjoyment over the portion marked as ‘ABE’ plaint schedule land. Pending the suit, the petitioner filed an application in I.A. No. 2058 of 2006 for grant of temporary injunction and the learned Junior Civil Judge by order dated 22.6.2007 directed to maintain status quo existing as on 19.12.2006. Thereafter, the petitioner filed an Application in I A No. 733 of 2007 under Order 26 Rule 9 read with section 151 of CPC to appoint an Advocate Commissioner to survey the suit schedule property with the assistance of the Mandal Surveyor and to submit a report. In the affidavit filed in support of the said application, it is stated that the petitioner is the absolute owner of Ac.0.18 cents of land in Survey No.8/32, Akkireddypalem, which was inherited from his for fathers. It is further stated that the portion marked as ‘ABE’ in the plaint schedule is his absolute property and he is exercising absolute rights over the same and respondents 1 to 3 are influencing the respondent no.4 to lay a pacca road therein by trespassing. Hence, the petitioner filed an application to appoint an Advocate Commissioner to survey the suit schedule property with assistance of the Mandal Surveyor and to submit a report. Counter affidavit was filed by the respondents before the Court below, stating that the petitioner has not filed any documents in support of his claim and that he has no right whatsoever over the ‘ABE’ portion of the plaint schedule land and is trying to grab the said land. It is also stated that unless the petitioner establishes his right over the land by submitting the relevant documentary evidence, it is not open for him to get assistance of Advocate Commissioner, which would only amount to gathering the additional evidence. The Court below considered various contentions raised by the petitioner as well by the respondents, dismissed the application observing that the petitioner having filed a suit for permanent injunction has to prove his case by placing cogent evidence before the Court, must have knowledge about the location of the suit property, its boundaries etc and possession over the same as on the date of filing of the suit. It is to be noted that appointment of Advocate Commissioner after passing a preliminary decree in a suit for partition and rendition of Accounts etc is different and distinct from appointment of Advocate Commissioner before passing the decree. It is well settled that it is the duty of the plaintiff to plead and establish the averments made in the plaint and he cannot be permitted to take advantage of the provisions of law to gather the evidence through appointment of Advocate Commissioner. Therefore, I am of the considered opinion that the Court below has rightly dismissed the application by refusing to appoint Advocate Commissioner, as sought for. For the foregoing reasons, the revision petition fails and accordingly the same is dismissed. No costs. ______________ V ESWARAIAH,J DATE: 27.1.2011 TVK THE HON’BLE SRI JUSTICE V ESWARAIAH C.R.P. NO. 639 OF 2010 DATE: 27.1.2011