THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NO.4357 OF 2011 O R D E R Heard both the counsel. 2. Aggrieved by the order and decree dated 22.09.2011, passed by the court of Principal Junior Civil Judge, Nellore in I.A.No.1180 of 2010 in O.S.No.682 of 2010, in appointing an Advocate Commissioner on the interlocutory application filed by the defendant in the suit, the plaintiff filed the present revision. 3. The case of the plaintiff is that she purchased the plaint schedule property shown in between points A B C D E F G H I J K L M N in the rough plan attached to the plaint under registered sale deed dated 15.1.1979 form one Biyyapu Anjaneyulu and in the said property, in points between C1 D E F F1 B1 and C2, she kept certain portion vacant for vastu and in a portion of the property, there exists a old house, which is in dilapidated condition. As the defendant tried to interfere, she filed the suit for injunction. 4. On the other hand, the case of the defendant, is that the plaintiff purchased 19 ankanams under the registered sale deed dated 15.1.1979 and that she has been in possession of the said property and that he purchased an extent of 7-28 sq. ft. and in which an extent of 5 ankanams from Vasudev Raghavendra Velluru and his son Venkatesh Vasudev Velluru under registered sale deed dated 24.2.2010 and has been in joint possession and enjoyment of the property. The plaintiff obtained interim injunction and has been harassing the defendant and his family members in enjoyment of their property. The further case of the defendant is that the property shown in the plan annexed to the written statement as ABCDKEF and GHIJ is the property purchased by the plaintiff, AFNOJGP is the common passage meant for ingress and egress from their respective properties into the main Rayaji street; KDOL is the joint well meant for their families and the property of the defendant is at FEKLMN. Alleging that the plaintiff by obtaining interim injunction, is harassing them from enjoyment of their property, sought for appointment of the advocate commissioner in I.A.No.1180/2010 in O.S.No.682/2010, to make local investigation and measure ABCDKEF, GHIJ, FEKLMN, AFNOJGP and KDQL as per plan attached to the written statement and with reference to both side documents with the assistance of a qualified Surveyor and to note down the physical features and to take photographs, if necessary. 5. By the impugned order, the court below appointed the advocate commissioner as sought for. Aggrieved by the same, the present revision is filed. 6. The learned counsel appearing for the petitioner/plaintiff vehemently contended that the impugned order of appointment of Advocate Commission is not warranted and it amounts to collection of evidence. She stated that earlier when the court below passed interim order dated 26.11.2010 in I.A.No.1180/2010, in appointing Advocate Commissioner without reasons, the plaintiff preferred revision before this court in C.R.P.No.181 of 2011 and this court by order dated 10.6.2011, set aside that order and remitted the matter back for passing orders by giving reasons. But even in the present order also no reasons were given. She stated that the suit is filed for injunction simplicitor and there is any amount of dispute with regard to possession and both the parties are claiming title under different sale deeds and these aspects have to be examined during the course of trial and the said job cannot be assigned to an Advocate Commissioner by passing a comprehensive direction. She fdurther stated that the plaintiff left certain extent, for observing vastu and the defendant is trying to grab the said property and there was a house in a dilapidated condition and the same is now vacant and hence there is no house existing the said site. Therefore, the defendant cannot claim that he is and his family members are in possession and enjoyment of the alleged property. She stated that appointment of an Advocate Commissioner in a suit for injunction simplictor, amounts to collection of evidence and further the suit is at the state of filing written statement and at this stage, appointing an Advocate Commissioner to localize based on the title deeds of the parties, and taking his report, would cause prejudice to the plaintiff and there is every likelihood of trial revolving around such report and hence Advocate Commissioner may not be appointed. In support of her contentions, she relied on the judgments of the learned single judges of this court reported in BONGU RAMULU vs. GUDUR NARENDER REDDY [1] a n d DAMMALAPATI SATYANARAYANA vs. DATLA VENKATA RAMABHADRA RAJU ALIAS D.V.R.RAJU [2] . She stated that local investigation of the suit schedule property can be made, but not based on the title deeds. With these averments, she sought to set aside the impugned order. 7. On the other hand, the learned counsel for the respondent/defendant while reiterating the averments made in the affidavit filed in support of I.A.No. 1180 of 2010, further contended that even in a suit for injunction simplictor, Advocate Commissioner can be appointed at any stage and his report will help the court in assessing the evidence available on record and to come to a just conclusion. He contended that the plaintiff is in possession of her property and under the guise of interim injunction, is not allowing the defendant to use the property. He stated that no prejudice would be caused to the plaintiff. In support of his contentions that an Advocate Commissioner can be appointed in a suit for injunction, he relied on the judgments reported in J.P.SUBBAMMA v. N.RAVI KUMAR REDDY[3], PAREPALLY SATYANARAYANA v. VUTUKURI MEENENDER GOUD [4] , SALLA ESWARAMMA v. C.SUBBA REDDY [5] , VARALA RAMACHANDRA REDDY v. MEKALA YADI REDDY [6] , YERRA AYYANNA v. H.MARTHAMMA[7], MALLIKARJUNA SRINIVASA GUPTA v. K.SHESHIREKHA[8], V.NAGABHUSHANA RAO vs. STATE OF A.P.[9] and CHALAPATI VEERANNA v. CHALAPATI VENKATACHALAM[10]. It is also submitted that the Advocate Commissioner, also executed the order and submitted the report and hence the revision itself is infructuous. With these averments and supporting the impugned order, sought for dismissal of the revision. 8. In view of the above rival contentions, the point that arises for my consideration is whether the court below is justified in appointing an Advocate Commissioner? 9. From the above material on record, the case of the plaintiff is that she purchased the suit schedule property under a registered sale deed and left certain portion as vacant, for observing vastu and as the defendant is interfering with the said property, filed the suit for injunction. The case of the plaintiff is that she is in possession of the property. On the other hand, the case of the defendant is that he purchased 7 ankanams 28 sq. feet in which an extent of 5 ankanams from Vasudev Raghavendra Velluru and his son Venkatesh Vasudev Velluru under registered sale deed dated 24.2.2010 and then has been in joint possession of the same, with absolute rights and that there exists common passage, which leads to the main road and that there is also common well. As per the registered sale deed, the plaintiff is having right over an extent of 19 ankanams of site in which there are constructions and that she has no right whatsoever in the plaint schedule property and that she obtained an interim injunction and taking advantage of the interim order, is harassing him and family members in enjoyment of their property. Therefore, he sought for appointment of Advocate Commissioner for proper adjudication of the suit. 10. The plaintiff filed the suit for permanent injunction and the burden is on her to prove the possession over the suit schedule property as on the date of filing of the suit. As per the facts noted above, both the parties are claiming possession over the suit schedule property. In these circumstances, appointing an Advocate Commissioner to visit the suit schedule property to note down the physical features and also measurements of properties, based on the sale deeds of both the parties, would amount to collection of evidence. In the present case, the plaintiff is disputing the sale deed of the defendant on the ground that the vendor has no right to execute the sale deed and further, the defendant states that he purchased an extent of 7 ankanams, 28 sq. feet, in which an extent of 5 ankanams from Vasudev Raghavendra Velluru and his son Venkatesh Vasudev Velluru under registered sale deed dated 24.2.2010. He states that he purchased 7 ankanams and again says an extent of 5 anaks, under registered sale deed dated 24.2.2010. Therefore, there appears to be some discrepancy with regard to extents. Further, the plaintiff states that in the suit schedule land, there is no house existing and on the contrary the defendants states that he is in joint possession and of the alleged property. Therefore, these disputed questions, have to be decided by the court based on the pleadings and evidence that is to be made available by the parties and the same cannot be entrusted to an Advocate Commissioner. 11. As per the judgments relied on by the counsel for the respondents, there is no dispute that even in a suit for injunction, an Advocate Commissioner can be appointed, but that would depend upon the facts and circumstances of each case and no straight jacket formula can be applied to all the cases. Therefore, the cases relied on by the counsel for the respondent cannot be made applicable to the facts of the present case in all fours. 12. The suit is at the stage of filing written statement and the trial is yet to be commenced. At the threshold itself, particularly in the light of the present facts and circumstances, appointing an Advocate Commissioner to submit report based on the sale deeds of both the parties, which are yet admitted in evidence, is not warranted, eventually, during the course of trial, if the court feels that there is any necessity, to arrive at a just conclusion, it may resort to appointment of an Advocate Commissioner. But such disputed questions, cannot be entrusted to a Commissioner at the beginning of the trial. In similar circumstances in DAMMALAPATI SATYANARAYANA vs. DATLA VENKATA RAMBHADRA RAJU ALIAS D.V.R. RAJU (2 supra), where the court below appointed an Advocate Commissioner to undertake localization of the suit schedule property with the help of a competent surveyor, basing on the title deeds of both the parties, this court while setting aside the said interim order in the suit, held as under: “6. The result of allowing the I.A. is that the Advocate Commissioner shall undertake localization of the suit schedule property with the help of a competent surveyor, basing on the title deeds of both the parties. It must be reiterated that the so-called title deeds must be accepted by the Court in evidence, before they constitute the basis for identification of the property. The admissibility, relevance etc., of the sale deeds can be undertaken only at the stage of recording evidence. The demarcation of the land with reference to location, survey numbers etc., must be with reference to the title deeds, which are admitted by the Court in evidence. If the report is submitted, even before the evidence is adduced, a stage may come, where the whole trial will revolve around such report. 7. For the foregoing reasons, the civil revision petition is allowed and the order under revision is set aside. It is, however, made clear that if after the parties lead evidence, the trial court comes to the conclusion that there is any overlapping of the property claimed by the petitioners on one hand and the respondents on the other; it may certainly consider the feasibility of appointing Advocate Commissioner to identify or localize the suit schedule property, with reference to the documents specified and indicated by the Court. There shall be no order as to costs.” 13. The grievance of the defendant is that the plaintiff obtained interim injunction, and under the guise of interim injunction, is harassing them in enjoying their property. There is no material on record to show that the defendant has taken any steps in filing appeal against the interim injunction order granted by the trial court and sought for its vacation. As already noted above, the suit is at the beginning i.e., written statement is filed and trial is yet to be commenced. A learned single Judge of this court in G.HANUMANTHA RAO @ ANJANEYULU v. BATTIGIRI RAMULU[11] in similar circumstances, in a suit for perpetual injunction and where temporary injunction was in force and the trial court appointed an Advocate Commissioner at the threshold, held as under: “5. Filing of applications for appointment of Commissioner under Order 26 Rule 9 C.P.C., in the suits for perpetual injunction, cannot be treated as a matter of routine. The contentions of the parties as to the possession over the suit schedule property, need to be appreciated, with reference to the evidence, that may be adduced, be it at the interlocutory or the final stage. The appointment of Commissioner, at the initial states, is prone to be treated as step to gather evidence. Therefore, the Courts discourage the filing of applications under Order 26 Rule 9 C.P.C. in the suits for injunction, at the initial stages.” 14. Therefore, having regard to the above facts and circumstances, I am of the considered view, that the interim order cannot be sustained and the same is liable to be dismissed. It is represented that the Advocate Commissioner executed the order and submitted the report. This cannot have any consequence, because this court found that the appointment of Advocate Commissioner to localize and measure the property based on the title deeds, is not warranted at the initial stage of the trial and the order of the trial court is being accordingly set aside. 15. Further, a reading of the impugned order shows that the trial court only on the ground that the appointment of an Advocate Commissioner would not cause any prejudice to the parties and on the other hand helpful to the court to effectively adjudicate the matter in controversy, allowed the I.A. But, it has not considered the actual controversy between the parties and the above facts and circumstances of the case and stage of the suit. Therefore, having regard to the above circumstances, the reasoning of the court below cannot be sustained. 16. For the foregoing reasons, the impugned order is set aside and consequently I.A.No.1180/2010 in O.S.No.682/2010 stands dismissed. It is made clear that the court below shall dispose of the suit on its merits, without being influenced by any observation made in this order. 17. The civil revision petition is accordingly allowed. No costs. AVS ------------------------------ JUSTICE G.CHANDRAIAH DATE: 28 --12—2011 [1] 1998(3) ALT 473 [2] 2006(4) ALD 675 [3] 2001(6) ALT 101 [4] 2008(1) ALD 461 [5] 2009(2) ALT 59 [6] 2010 (4) ALD 198 [7] 2009(1) ALD 548 [8] 2006(4) ALT 162 [9] 1998(1) ALT 35 [10] 1958(II) Andhra Weekly Reporter 296 [11] 2008(1) ALD 466