THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NO.3069 OF 2011 O R D E R Heard both the counsel. 2. The plaintiﬀ and 1st defendant are sister and brother. The plaintiﬀ ﬁled the suit in O.S.No.173 of 1998 on the ﬁle of Principal Junior Civil Judge, Kovur, seeking permanent injunction in respect of Acs.2-00 of land in P.No.108, S.No.54/1 P. During pendency of the suit, the 1st defendant died and his wife and son were brought on record. 3. The case of the plaintiﬀ is that the suit schedule property was given to her in the year 1976 as pasupukumkuma at the time of her marriage and she and her husband were in possession and enjoyment of the said land. The 2nd defendant ﬁled a suit in O.S.No.32/1980 on the ﬁle of Senior Civil Judge, Kavali for partition and in the said suit, a compromise decree was passed and in the said suit, the present suit schedule property was shown as item no.5 and it was admitted by all the parties that the said land was given to her towards pasupu Kumkuma and a compromise decree was passed to that eﬀect and thereafter her name was also mutated in the revenue records. As there was interference from the defendants, the present suit is filed for permanent injunction. 4. The 3rd defendant ﬁled the written statement and denied all the plaint averments and sought for dismissal of the suit. 5. By judgment and decree dated 20.01.2010 the said suit was decreed. Challenging the same, the defendants ﬁled ﬁrst appeal in A.S.No.10 of 2010 on the of Senior Civil Judge, Kovur. Pending the appeal, the appellants ﬁled I.A.No.79/2010 in A.S.No.10/2010, seeking appoint of an Advocate Commissioner under Order 26, Rule 9 read with Section 151 C.P.C., on the ground that there is no separate existence for the suit schedule property, which is an extent of Ac.2-00 and it forms part and parcel of Acs.3-04 cents in Sy.No.54/1 of Venlicherla village and they are in possession of the suit schedule property and that the said property was not given to the plaintiﬀ/respondent as pasupu kumkuma. The respondent/plaintiﬀ ﬁled counter and denied the averments made in the I.A. and sought for dismissal of the same. By order and decree dated, the lower appellate holding that appointment of Advocate Commissioner to identify whether Ac.2- 00 of suit land has separate existence, will not amount to collection of evidence and that it will not cause any prejudice to the respondents, allowed the I.A. Aggrieved by the same, the present revision is filed. 6. The learned counsel appearing for the petitioner vehemently contended that an Advocate Commissioner cannot be appointed for collection of evidence and the court below based on the material evidence available on record, has to give a ﬁnding as to who is in possession of the suit schedule property. Now seeking appointment of an advocate commissioner in the appeal, without taking any steps during the pendency of the suit, is nothing but to protect the litigation and cause prejudice to the petitioner/plaintiff. Therefore, he sought for setting aside of the impugned order. 7. On the other hand, the learned counsel appearing for the respondent/appellants/defendants submitted that the suit schedule property has no separate existence and it forms part and parcel of Acs.3-04 cents in Sy.No.54/1, Venlicherla Village, over which they are in possession and that appointment of an Advocate Commissioner to ﬁnd out whether the suit schedule property has separate existence or not, will not amount to collection of evidence. Relying on the judgments of learned single Judges of this court reported in MUKUND LAL v. SHARADA BAI[1] and JAYALAKSHMI CONSTRUCTIONS, HYDERABAD v. NAWAB BEHBOOB ALI KHAN[2], he stated that the Advocate Commissioner can be appointed in a suit for permanent injunction and no prejudice would be caused to the respondents. He stated that the court below exercising the discretionary jurisdiction, allowed the I.A. and the same may not be interfered with in the revision. With these submissions, he sought for dismissal of the revision. 8. In view of the above rival contentions, the point that arises for consideration is whether there are any grounds to interfere with the impugned order? 9. It is to be noticed that in a suit for permanent injunction, the burden is on the plaintiﬀ to prove her possession over the suit schedule property as on the date of the ﬁling of the suit. The case of the plaintiﬀ is that she was given the suit schedule land at the time of her marriage as pasupu kunkuma and that same was also recorded in a compromise decree in O.S.No.32/80 on the ﬁle of Senior Civil Judge, Kavalai for partition and her name was also mutated in the revenue records. On the other hand, the case of the defendants while denying the plaint averments, is that they are in possession of the suit land and the suit land is part and parcel of Acs.3-04 cents in Sy.No.54/1, Venlicherla village and that the suit schedule land has no separate existence. Therefore, both the parties are claiming possession over the suit schedule property. The trial court holding that the plaintiﬀ proved her possession over the suit schedule property, decreed the suit with costs. 10. When both the parties are claiming possession over the suit schedule property, the court has to decide the same based on the material evidence on record. Whether the suit schedule property has separate existence or not, would hardly be of any relevance, since the burden is on the plaintiﬀ to prove her possession over the suit schedule property, which she is successful before the trial court and the matter is pending consideration in the appeal. Seeking the court to appoint an Advocate Commissioner, to identify whether the suit schedule property has any separate existence or not or whether the same forms part and parcel of the land claimed by the defendant, is nothing but collection of evidence, at the appellate stage in favour of the appellants. There is no material on record to show that the respondents/appellants have taken any steps during the pendency of the suit. When the matter is pending at the appellate stage, contending that the appellants are in possession over the suit schedule property and that it forms part and parcel of their land and seeking to identify the same, amounts to denying the possession of the plaintiﬀs, which they have to establish based on the material evidence available on record and the same cannot be entrusted to an Advocate Commissioner, in view of the above facts and circumstances of the case. 9. There is no dispute that an Advocate Commissioner can be appointed even in a suit for permanent injunction for local investigation, but the same depends upon the facts and circumstances of each case. In the present case, as already noted above, there is any amount dispute with regard to possession over the suit schedule property and the petitioners/plaintiﬀs are successful before the trial court in proving their possession and the same is being tested in the appellate court. At this stage seeking appointment of an Advocate Commissioner, as noted above, is nothing but collection of evidence and causing prejudice to the case of the petitioners/plaintiffs. 10. For the foregoing reasons, the impugned order cannot be sustained and the same is liable to be set aside and accordingly set aside and consequently the I.A.No.79/2010 in A.S.No.10/2010 is dismissed. 11. In the result the revision is allowed. No costs. 12. It is made clear that the court below shall dispose of the appeal in accordance with law, uninﬂuenced by any ﬁnding or observation, made, if any, in the course of the above order. AVS ------------------------------------ 16—11—2011 [1] 2006(1) ALD 221 [2] 2006(2) ALD 363