THE HON’BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.5898 of 2010 ORDER: 1 This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the order dated 16.08.2010 passed by the learned IV Additional District Judge, Warangal in I.A.No.1910 of 2009 in O.S.No.87 of 2009 whereby the petition filed by the first respondent herein under Order XXVI Rule 9 CPC to appoint an advocate commissioner was allowed. Petitioner herein is the 9th defendant in the said suit. 2 First respondent herein being the plaintiff in the said suit filed the said I.A.No.1910 of 2009 under Order XXVI Rule 9 CPC for appointment of an advocate commissioner to make local inspection of item No.1 of the plaint schedule property and to record physical features thereon and the items existing therein. The said application is allowed by the order impugned in this revision. 3 In this revision petition, while issuing notice before admission interim orders are passed granting interim stay of all further proceedings pursuant to the order passed in this revision petition and the learned counsel for the petitioner was also permitted to take out personal notice to the respondents by RPAD and file proof of service. 4 The learned counsel for the petitioner has field the returned cover, which was sent to the first respondent, with an endorsement “Unclaimed”. Further, he has filed proof of service by serving notice on the advocate on record appearing for the first respondent. In view of the judgment of the apex Court in the case of C.C. ALAVI HAJI Vs. PALAPETTY MUHAMMED and inasmuch as the first respondent had unclaimed the notice sent by the petitioner through registered post, it is deemed service of notice on the first respondent in person also apart from the service on the counsel for the first respondent on record. In spite of service of notice, there is no representation on behalf of the first respondent. 5 The suit in O.S.No.87 of 2009 is filed for partition and separate possession. Item No.1 of the suit schedule property is house bearing D.No.2-96 and 2-97 of Ramavaram village Kodakandla Mandal in Warangal District. Pleading that the suit schedule property is a joint family property and he is having 1/3rd share in it and that some wooden furniture and other furniture belonging to the joint family property is existing in the said property and that the respondents 1 to 6 are trying to illegally remove them to erase the traces and existence of joint family property to cause loss to him, the first respondent/plaintiff filed the said I.A.No.1910 of 2009 seeking appointment of an advocate commissioner to make a local inspection of item No.1 of the suit schedule property and to record the physical features thereon and also the articles existing therein. 6 At the first instance, when an ex parte Commissioner was appointed, the petitioner approached this Court by way of CRP No.1196 of 2010. This Court, while disposing of the said revision petition, permitted the petitioner to file counter affidavit before the Court below in I.A.No.1910 of 2009 and also gave direction to the Court below to consider the pleas of the petitioner and to pass appropriate orders. The petitioner herein field counter affidavit before the Court below opposing the petition in I.A.No.1910 of 2009. 7 I have perused the copy of the counter affidavit filed by the petitioner before the Court below in which the petitioner categorically denied the contention of the first respondent that he is in joint possession of the property and that the respondents 1 to 6 are trying to illegally remove the items existing in Item No.1 of the suit schedule property to erase the traces and existence of joint family properties and also to cause loss to him. In the said counter, it is specifically pleaded that the first respondent / plaintiff, in collusion with the other respondents/defendants filed the above suit in order to cause loss to him. Reference is also made to the earlier suit filed by some of the defendants against him in O.S.No.30 of 2009 in which at the first instance interim orders were obtained and subsequently they were vacated on the application filed by him. It is the specific case of the petitioner that he is in exclusive possession and enjoyment of the item No.1 of the suit schedule property pursuant to the registered gift deed dated 08.11.2002 executed by the fifth respondent in the application. Even with regard to the properties, it is categorically pleaded that he owns them and the house property is being used for rendering free medical services and the defendants 1 to 8 have no concern with them and in spite of the same, the first respondent / plaintiff has put up a false claim. 8 In the said I.A. i.e. 1910 of 2009 no oral evidence is let in. But, on behalf of the petitioner herein Exs.R.1 to R.20 were marked. In spite of the categorical plea of the petitioner that the properties are in his exclusive possession and the property itself belongs to him pursuant to the registered gift deed dated 08.11.2002 executed by the fifth defendant, several contentious issues raised by the petitioner before the trial court are not considered. But merely accepting the plea of the first respondent that the articles are said to be removed by the respondents 1 to 6, the said application i.e. I.A.No.1910 of 2009 was allowed and directed both parties to file their respective objections, if any, for the report filed by the Commissioner who was already appointed in the earlier ex parte proceedings. When it is the claim of the petitioner herein that the suit schedule property is in his exclusive possession pursuant to the gift deed executed by the fifth defendant in the suit, the court below has not considered such aspect and passed the impugned order without considering the essential document to show that the petitioner is in exclusive possession of the property in question. Although it is the case of the first respondent/plaintiff that the respondents 1 to 6 are trying to remove the articles from the house, but, when the ownership itself is set up by the petitioner pursuant to the gift deed, unless the validity of such gift deed is gone into in the suit, the first respondent cannot claim that the articles belong to him. As this Court is of the view that when the documents put forth by the petitioner in their defence have not been considered, and as this Court is also of the view that unless the first respondent / plaintiff succeeds in the suit by establishing his right over item No.1 of the suit property, being the joint family property, he is not entitled to seek for appointment of a commissioner on the ground that certain articles in the house belong to him and he is also having a share in the said property. 9 For the aforesaid reasons, this Court is of the view that there is no valid reason assigned by the Court below to appoint an advocate commissioner in exercise of power under Order XXVI Rule 9 CPC. More so, it is to be noticed that the suit is for partition and separate possession. Unless the properties are established as joint family properties and that the first respondent/plaintiff is entitled to 1/3rd share in the said house, he is not entitled to seek appointment of an advocate commissioner, in view of the defence put forth by the petitioner that he is in exclusive possession over the said property pursuant to the registered gift deed executed by the fifth defendant in the suit. In that view of the matter, the order impugned in this revision is liable to be set aside. 10 Accordingly, this Civil Revision Petition is allowed, the order impugned in this revision is set aside and the I.A.No.1910 of 2009 filed by the first respondent/plaintiff stands dismissed and the report, if any, filed by the Advocate Commissioner is also set aside. No order as to costs. -------------------------- R.Subhash Reddy, J. 25.11.2011 Kvsn