IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.638 of 2007 Between: Suram Raji Reddy ..Petitioner AND Suram Raghava Reddy and 2 others .. Respondents ORDER: The Civil Revision Petition is directed against the order in I.A.No.1157 of 2006 in I.A.No.842 of 2006 in O.S.No.262 of 2006 on the file of the Court of II Additional Senior Civil Judge, Warangal, dated 13-11-2006 by which an Advocate Commissioner was appointed to note down the physical features specified such as the passing of the pipeline through the suit land or otherwise and cultivation of the land alleged to have been given to the petitioner or otherwise etc., apart from any matters, which are pointed out by the learned counsel for both sides in their work memos. The suit was filed by the respondents 1 and 2 herein against the revision petitioner and the 3rd respondent herein for the reliefs of mandatory injunction for removal of the pipeline across the suit land and permanent injunction against interference with the possession of the respondents 1 and 2 by the revision petitioner and the 3rd respondent herein in respect of the suit land which is described as an extent of Ac.1.16guntas in Sy.No.343/A of Kaniparthy village shivar, Warangal District. The grievance of the respondents 1 and 2 in the suit is about the revision petitioner and 3rd respondent laying a pipeline across the suit land owned and possessed by them and making the land uncultivable by laying moram and using the suit land as a road for reaching the other side of the suit land. Pending the suit, respondents 1 and 2 herein also sought for an interim injunction in I.A.No.842 of 2006, which is contested by the revision petitioner and the 3rd respondent herein contending that the pipeline is laid in the edge of the culvert nala and as their lands are on either side of the suit land, a path way was carved out to the east of the suit schedule property. Respondents 1 and 2 herein applied for appointment of an Advocate Commissioner in view of the averments made by the revision petitioner and the 3rd respondent in their counter affidavit to I.A.No.842 of 2006 and the respondents 1 and 2 herein desired that the Advocate Commissioner should note the passing of pipeline through the land and the cultivation of the land allegedly given to the plaintiffs. The request was resisted by the revision petitioner and the 3rd respondent herein contending that a Commissioner cannot be appointed to gather and collect evidence under the guise of noting the physical features and the plaintiffs have to prove their case by way of their pleadings and oral and documentary evidence on their behalf. The trial Court in the impugned order opined that noting of existing physical features, which are alleged by the plaintiffs to be attempted to be changed by the defendants, is just and necessary for the just disposal of the dispute between the parties. It also opined that noting the physical features would not amount to collection of evidence and consequently passed the impugned order. The same is under challenge herein by the revision petitioner contending that the appointment of an Advocate Commissioner to gather evidence under the guise of noting the physical features is impermissible in law and it is for the plaintiffs to establish their claim on positive evidence, but not on the strength of a Commissioner’s report. Sri H. Venu Gopal, learned counsel for the revision petitioner and Sri Hari Prasad Podila, learned counsel for respondents 1 and 2 are heard. The point for consideration is whether the appointment of an Advocate Commissioner for the purpose specified is justified. Learned counsel for the respondents 1 and 2 referred to Mallikarjuna Srinivasa Gupta v. K. Sheshirekha[1], wherein a learned Judge of this Court has held that in order to resolve the dispute between the parties and in order to do justice to both parties, it is essential to appoint an advocate commissioner for local inspection of the disputed land, which causes no prejudice. Similarly, in Mukund Lal v. Sharada Bai[2] another learned Judge of this Court opined that it cannot be said that the Advocate Commissioner has been appointed to collect evidence for the plaintiff or that the Advocate Commissioner will be noting down the physical features behind the back of the opposite party. It is also observed that the report of the Advocate Commissioner would not be final and will be always open to the objections by both parties. Another learned Judge held in Vemuri Hitlar Rao v. Vemuri Jayaram Prasad[3] that the Court, if it feels necessary, can appoint an Advocate Commissioner depending upon the facts and circumstances of a given case though it is true that possession of the property has to be established by a party, who pleads to be in possession. Another learned Judge of this Court held in Jayalakshmi Constructions, Hyderabad v. Nawab Behboob Ali Khan[4] that the factum of possession relevant to the adjudication of the petitions filed seeking temporary injunctions shall have to be decided always and in all circumstances with reference to the evidence adduced on either side and independent of the observations made, if any, by the commissioner in his report. Thus, ruling that the question of possession cannot be concluded by the Commissioner’s report, the appointment of Advocate Commissioner to note down the physical features was not frowned upon, except if it was for collecting evidence. An order by the Court appointing a Commissioner to note down the physical features to draw a rough sketch and to take photographs was held to be an innocuous order not prejudicing in the interests of either party and not influencing the contentious issue of factum of possession. It is, thus, seen from the precedents cited that the appointment of an Advocate Commissioner to note the physical features of the property in dispute may not by itself amount to either collection of evidence for the parties or deciding the question of possession of the property, which is in issue between the parties. It is on the facts and circumstances of each case, that question has to be considered and in the present case, the location of the pipeline either across or through the suit land or in the edge of the culvert nala appears to be the question in issue. While incidentally the disputed land being under the culvert or not also appears to be in dispute, the entitlement of the plaintiffs ultimately to the mandatory and permanent injunctions claimed in the suit or in the meanwhile to an interim injunction against the defendants in the suit will be decided on the oral and documentary evidence to be made available to the trial Court by the parties. But, the apprehension of the plaintiffs expressed in this petition is that the physical features of the suit land are being attempted to be changed by force, which will make it difficult for the plaintiffs to establish the physical state of the property as on the date of the suit. In view of the conflicting pleadings of the parties about the location of the pipeline and the nature of the suit land, recording the physical features of the suit locality will be in the interests of justice, but such recording of physical features by the Advocate Commissioner will not excuse the plaintiffs from discharging the burden of proving their entitlement to the interim or final reliefs on positive evidence to be produced by them. The question of possession or ownership will not be decided on the strength of the Commissioner’s report, which will be, as a part of the record, a circumstance, which the trial Court will take into account in appreciating the rival contentions and evidence, but not as the sole or prime basis for its conclusions. If that is the legal position and if the facts justified the recording of physical features as of now, the impugned order cannot be considered to be unreasonable or illegal. However, the direction given to the Advocate Commissioner by the trial Court can be appropriately worded so as to be in tune with the accepted principles of law, by directing the Advocate Commissioner to identify the suit land and note the physical features therein including the existence of a pipeline and cultivation of the same. Both the parties shall be directed to appear before the Advocate Commissioner and the Advocate Commissioner shall be directed to give notice to both parties before executing the warrant of commission and answer work memos, if any, filed before him by the parties or their counsel and note every physical feature relating to the suit land identified by him with notice to both parties. The Civil Revision Petition is ordered accordingly without costs directing inclusion of the above directions in the commission warrant to be issued to the Advocate Commissioner for compliance. _____________________ G. BHAVANI PRASAD, J Date: 22-07-2010 Ksn [1] 2006 (4) Andhra Law Times 162 [2] 2006 (1) Andhra Law Times 221 [3] 2005 (5) Andhra Law Times 704 [4] 2006 (2) Andhra Law Times 132