IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.5101 of 2007 Between: Badri Gowree Eswaraiah and another .. Petitioners AND Elluru Venkata Swamy .. Respondent ORDER: This Civil Revision Petition is directed against the order in I.A.No.233 of 2007 in O.S.No.95 of 2005 on the file of the Junior Civil Judge, Guntakal, dated 23-10-2007 by which the trial Court appointed an advocate commissioner to note down the physical features and to measure the suit schedule land and land of the respondents with reference to their respective documents with the assistance of the Mandal Surveyor after taking work memos from both the parties. The respondent herein claims to have purchased the suit land on 15-04-1994 under a registered sale deed through which Dosaludiki Gundala Thanda road passes with which the revision petitioners were interfering leading him to file the suit. The revision petitioners resisted the plea claiming to have purchased their land in 1978 under a registered sale deed for which land the western boundary is Dosaludiki Gundala Thanda road. The parties are respectively claiming to be in possession and the respondent filed the petition for appointment of an advocate commissioner for localization of the petition schedule land, identifying the lands in the locality and the land of the respondents and noting the physical features with the assistance of a Mandal Surveyor. The same was resisted by the revision petitioners primarily on the ground of such an attempt being an attempt to collect the evidence through the Commissioner. The trial Court passed the impugned order observing that the dispute would be minimized, if the lands are measured with reference to the respective documents of title and if the features are noted. For the said purpose, the trial Court relied on Jayalakshmi Constructions and another v. Nawab Behboob Ali Khan and others (2006 (2) ALT 132) and considered the appointment of an advocate commissioner to be enabling the court to have a clear picture to consider the respective claims, which will not amount to collection of evidence. The said order is under challenge herein at the instance of the defendants, who contend that the impugned appointment amounts to an attempt for collection of evidence through the Commissioner beyond the scope of Order XXVI Rule 9 of the Code of Civil Procedure. Sri S. Lakshmi Narayana Reddy, learned counsel for the revision petitioners and Sri Kunche Maheswara Rao, learned counsel for the respondent are heard. Though the sale deed in favour of the respondent dated 15-04-1994 is claimed to have mentioned the eastern boundary as Dosaludiki Gundala Thanda road, Sri Lakshmi Narayana Reddy, learned counsel, showed the link document dated 26-12-1990 to be specifying the land of the vendor of the respondent to be bounded by road on the east. The plaint schedule and the plaint plan are as though the land of the respondent extends beyond the road shown as passing through the land of the respondent in its eastern half. Whether the respondent has land only up to the said road on the east of his land or whether he has land even to the east of the said road, which is only passing through his land and whether his possession of any land is either way has to be established through oral and documentary evidence in the suit. The Advocate Commissioner, who may note the physical features of the lands and the locality, will and cannot determine in whose possession which extent of land is at present and his duty is confined to noting the physical features and identifying the respective lands obviously with reference to the respective title deeds. It will be open to the revision petitioners to file a work memo before the learned Advocate Commissioner to identify the land covered by and as described in the document No.1555/1990 dated 26-12-1990 relied on by them and try to establish before the trial Court the genuineness of their defence based on such a document or any circumstance flowing out of the measurements taken on the basis of such a document. That should not prevent the attempt by the advocate commissioner to minimize the scope of the dispute by identifying the lands of the respective parties with reference to their respective title deeds or note such other physical features that may be of relevance in determination of the dispute between the parties. The exercise of the judicial discretion by the trial Court under Order XXVI Rule 9 of the Code of Civil Procedure to appoint an advocate commissioner cannot be faulted under such circumstances. While it should be made clear that any report of such advocate commissioner cannot offer any conclusive guidance in determining the question of possession, which has to be adjudicated by the trial Court on the evidence to be placed before it by both parties, of course, the trial Court is at liberty to draw appropriate inferences from the report of the learned Advocate Commissioner in support of any conclusions, which may be arrived at on the basis of such evidence and as already stated the revision petitioners will be at liberty to have the identification of lands done also with reference to the document or documents relied on by them by filing appropriate work memos before the learned Advocate Commissioner, which shall be answered by the learned Advocate Commissioner. The impugned order is, therefore, not interfered with and the Civil Revision Petition is disposed of accordingly with the above observations. No costs. _____________________ G. BHAVANI PRASAD, J Date: 01-07-2010 Ksn