THE HON’BLE SRI JUSTICE V ESWARAIAH C.R.P. NO. 587 OF 2010 DATE:11.3. 2011 BETWEEN: Pyla Muganaidu petitioner And Datla Appalanarasimha Raju & ano respondents Counsel for the petitioner : Mr K.V.Subrahmanya Narusu Counsel for the respondent: The Court made the following order: THE HON’BLE SRI JUSTICE V ESWARAIAH C.R.P. NO. 587 OF 2010 ORDER: The petitioner and second respondent herein are defendants in the suit in O.S. No. 48 of 2002 filed seeking permanent injunction. In the said suit, the defendants filed an application in I A No. 173 of 2009 under Order 26 Rule 9 and Section 151 of Civil Procedure Code to appoint an Advocate Commissioner to note down the physical features and measure the suit schedule property with the help of Mandal Surveyor of Paravada mandal. The Court below on consideration of the matter, dismissed the said application observing that earlier the Court has appointed an Advocate Commissioner by order passed in I.A No. 1351 of 2002 and the petitioner did not take any steps to execute the Commissioner warrant , as such said application was closed and now once again the petitioner has filed the present application for appointment of another Commissioner. It is also observed that the main suit is filed for mere injunction and appointment of Advocate Commissioner would help the petitioner. Heard the learned counsel for petitioner and perused the material available on record. Admittedly, the Court below by orders in I A No. 1351 of 2002 has appointed Advocate Commissioner and the said Commissioner warrant was not executed and the said application was closed. Thereafter the petitioner has chosen to file the present application seeking appointment of another Advocate Commissioner and the same was opposed by the respondent by filing a counter affidavit. It is to be noted that even the previous order of the Court below, appointing an Advocate Commissioner, cannot be accepted, as before passing the decree, parties cannot be permitted to gather the evidence with the help of Advocate Commissioner. The controversy is relating to the possession of the suit property, the plaintiff has to establish the same by adducing cogent and relevant evident. The burden of the parties to prove its claim cannot be shifted on the Advocate Commissioner for gathering the evidence. This Court is of the considered opinion that appointment of an Advocate Commissioner to note down the physical features and measure the suit schedule property with the help of the Mandal Surveyor of Paravad mandal basing on the FMB and other relevant records, is not maintainable, however, appointment of an Advocate Commissioner only to note down the physical features may be permitted. If petitioner is so desirous he is at liberty to file an appropriate application for appointment of Advocate Commissioner to note down the physical features of the schedule property only and if any such application is filed, the same shall be considered on its own merits. There are no merits in the revision and the same is hereby dismissed. No Costs. However, the Court below is directed to dispose of the suit on priority basis. ______________ V ESWARAIAH,J DATE: 11.3.2011 TVK THE HON’BLE SRI JUSTICE V ESWARAIAH C.R.P. NO. 587 OF 2010 DATE: 11.3.2011