THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION NO.5694 OF 2008 ORDER: In a suit for partition filed by the petitioner herein, he had sought injunction restraining the defendants/respondents herein from taking up the constructions. That application, however, was confined only to the 4th respondent, as per the endorsement of the counsel for the petitioner. An application for appointment of Advocate Commissioner to visit the plaint schedule properties and report the physical features was also filed by the petitioner in I.A.No.930 of 2007. This petition also was confined only to the 4th respondent. The Court below allowed the said application as per the order dated 02.11.2007. It appears that the 4th respondent was already set ex parte and his proceedings for setting aside ex parte order are said to be pending. The Advocate Commissioner visited the schedule premises and reported that so far as item No.1 is concerned, it was found locked and the gate was refused to be opened by the representative of one Mohan Babu. The said Mohan Babu is respondent No.2 herein and defendant No.2 in the suit. The learned Advocate Commissioner therefore, filed a report informing the Court that he could not enter item No.1 on account of the gate being not opened by the representative of respondent No.2. Thereupon, the petitioner filed the present application requesting the Court that the Advocate Commissioner was obstructed by the men of the 4th respondent and the second respondent wantonly and therefore, the Commissioner be directed to revisit item No.1 and to enter the said premises, if necessary by taking assistance from the police and to note down the physical features. The said application was filed showing all the respondents as parties. However, the Court below having found that the original application I.A.No.930 of 2007 being not pressed against respondents 1 to 3 and 5, the application in respect of re-visit by Commissioner was confined only with regard to the 4th respondent and after noticing that the stand of the second respondent is that the property belongs to him and that the 4th respondent has nothing to do with the said property, the Court below dismissed the petitioner’s application. Hence, this revision. Heard the learned counsel on either of the parties. It is clear from the narration of facts that the only respondent against whom the order of appointment of Commissioner was made in I.A.No.930 of 2007 is respondent No.4. According to the petitioner, the 4th respondent is in possession of item No.1, whereas the counter filed by the second respondent shows that he alone is in possession and the 4th respondent has nothing to do with item No.1. The 4th respondent also field a counter stating that item No.1 was leased out by Savitri and Mohan Babu i.e., defendants 1 and 2 in favour of one Dhananjaya Reddy. The appointment of Advocate Commissioner by the Court below was for the purpose of noting down the physical features and reporting the same to the Court. The said order in any case had to be complied with and the Advocate Commissioner had to be given access to inspect the plaint schedule property and report the physical features. However, the facts of the case also disclose that the said order was obtained only against the 4th respondent and his possession for item No.1 is seriously disputed by the other respondents. It is in those circumstances that, though in principle, the Commissioner must be directed to revisit and complete the execution of the warrant of commission so far as item No.1 is concerned and report the physical features, the order of appointment of Commissioner being confined only to the 4th respondent, the further entrustment of the work to the Commissioner to revisit and report would necessarily be confined only against the 4th respondent. The impugned order is accordingly set aside. The Court below shall re-entrust the warrant of Commission to the learned Advocate Commissioner who had earlier visited item No.1, requiring the Advocate Commissioner to visit item No.1 and if the said item No.1 is found displaying the name of the 4th respondent, the Commissioner shall be allowed to visit inside the premises and shall note the physical features and report. Costs of Commission, to be fixed by trial Court, shall be borne by petitioner. The Civil Revision Petition is accordingly disposed of. There shall be no order as to costs. _____________________________ JUSTICE VILAS V. AFZULPURKAR 2nd December, 2010 bud THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.5694 of 2008 Dated:02.12.2010