THE HON'BLE SRI JUSTICE V.ESWARAIAH C.R.P.Nos.6092, 6098 & 6101 of 2009 COMMON ORDER: These three Civil Revision Petitions are filed against the orders dated 21.08.2009 passed by the Junior Civil Judge, Gajuwaka in I.A.No.420 of 2009 in O.S.No.410 of 2006, I.A.No.422 of 2009 in O.S.No.414 of 2006 and I.A.No.421 of 2009 in O.S.No.413 of 2006, wherein the applications filed under Order XXVI Rule 9 r/w Section 151 C.P.C to appoint an Advocate Commissioner to note down the physical features as well as to localise Plot Nos.81 part and 82 part of the respondents/plaintiffs and also Plot Nos.79 and 80 purchased by the petitioner/defendant, was dismissed. Since the issue involved in all these Civil Revision Petitions is one and the same, they are heard together and disposed of by this common order The respondents herein filed the above suits seeking permanent injunction restraining the defendant/petitioner herein from interfering with their peaceful possession and enjoyment of the plaint schedule properties stating that they have purchased an extent of 333.33 Sqare Yards of site each in Plot Nos.81 part and 82 part situated in Survey No.186 of Savitramma Narayana Murthy (Sanatnagar) Colony, China Gantyada Village. Pending the suits, the defendant filed the above I.As seeking to appoint an Advocate Commissioner to note down the physical features as well as to localise Plot Nos.81 part and 82 part of the respondents/plaintiffs and also Plot Nos.79 and 80 purchased by the petitioner/defendant with the assistance of VUDA Surveyor and the Panchayat approved plan of that layout. It is the case of the defendant that in the suits filed by the plaintiffs, he had filed detailed written statements with regard to the right, title and possession over the suit schedule property. It is also stated that the plaintiffs are claiming on papers Plot Nos.81 part and 82 part but on ground they are showing Plot Nos.79 and 80; that he purchased an extent of 800 square yards in Plot Nos.79 and 80 under valid registered instrument; that prior to the purchase of the said property, his vendor constructed a tiled house in the schedule property; that VUDA acquired Plot Nos.77 and 78 in that layout which are adjacent his property; that though the plaintiffs are showing their title based on papers in respect of Plot Nos.81 part and 82 part, on ground where the alleged plots are situated do not know to anybody and that to come to a just decision and to know the correct boundaries and location of the alleged Plot Nos.81 part and 82 part, it is very much essential to appoint an Advocate Commissioner to localize Plot Nos.81 part and 82 part alleged to have been purchased by the plaintiffs and Plot Nos. 79 and 80 purchased by the defendant. The plaintiffs contested the applications by filing counter affidavits opposing appointment of Advocate Commissioner and stating that they have filed relevant documents to prove their right, title and possession over the schedule property and in fact pending the suits they filed an application for grant of interim injunction in I.A.No.1044 of 2006 in O.S.No.414 of 2006 and the learned Junior Civil Judge, Gajuwaka by order dated 30.07.2007 considered the rival contentions about the respective sale deeds and granted interim injunction. Considering the entire material available on record, the learned Judge, by orders dated 21.08.2009 dismissed all the three applications holding that it is for the plaintiffs to prove their right, title and possession of the suit schedule property by adducing evidence during the course of trial, but the Advocate Commissioner cannot be appointed to localize the plots of the plaintiffs and the defendant, which amounts to gathering the evidence. Aggrieved by the said orders dated 21.08.2009, these three civil revision petitions are filed. Sri Josyula Bhaskara Rao, learned counsel for the petitioner/defendant submits that the disputes as to whether the pliant schedule property is available on ground or not and whether under the guise of the documents the plaintiffs are occupying the property of the defendant are to be resolved by making a local inspection by the Advocate Commissioner with the help of the Surveyor alone and the same cannot be resolved by the Court during the course of trial, and therefore, the Court below erred in dismissing the applications filed by the defendant seeking appointment of an Advocate Commissioner. In support of his contention, he placed reliance upon various judgments of this Court in Vishnudas Manga Bhavani v. Vooturi Bhaskar[1], Chukka Venkatadri v. Mallavarapu Mahalakshmamma[2], Salla Eswaramma v. C.Subba Reddy[3], N. Savitramma v. B.Changa Reddy[4] a n d Varala Ramachandra Reddy v. Mekala Yadi Reddy[5]. He specifically relied upon a judgment of the Supreme Court in E. Achuthan Nair v. P.Narayanan Nair[6], wherein the suit filed by the plaintiff for specifying and demarcating the property comprised in the plaint schedule as per the terms of the agreement dated 25.06.1960, after taking a plan of the property and for grant of perpetual injunction though dismissed by the trial Court on the ground that such a suit to specify and demarcate the plaint schedule property was not maintainable, in fact during the pendency of the said suit, a Commissioner was appointed to locate the boundary in the manner indicated by the agreement and the Commissioner did in fact submit a report locating the boundary. The plaintiff preferred an appeal against the dismissal of the suit and a Division Bench of this Court reversed the said judgment of the trial Court holding that there was no bar to the suit or the grant of the relief claimed by the plaintiff. Aggrieved by the same, the defendant carried the matter in appeal before the Supreme Court. The Supreme Court, while dismissing the appeal held that whenever there is a dispute between two parties as to the location of a boundary separating their neighbouring properties and if on a demand to cooperate in fixing that boundary it is not given, a suit will lie at the instance of the demanding party. The above said judgment of the Supreme Court has no application to the facts of this case, since in the instant case, the plaintiffs filed the suits seeking permanent injunction based on the averments made in the plaints claiming right, title and possession of the plaint schedule property. Further, the properties claimed by the plaintiffs and the defendant are different. According to the plaintiffs, their properties are part of Plot Nos.81 part and 82 part, whereas defendant’s property is part of Plot Nos.79 and 80. Therefore, it is for the respective parties to through the averments made in the respective pleadings. Insofar as the law laid down by this Court and Apex Court in the aforesaid judgments, there cannot be any dispute that an Advocate Commissioner can be appointed under Order XXVI Rule 9 C.P.C. in any suit irrespective of injunction or title for local investigation for the purpose of elucidating any matter in dispute. Order XXVI Rule 9 CPC is a comprehensive provision for appointment of Advocate Commissioner in various types of suits. Whereas, types of Commissions are narrated in Rule 10 (A) (B) and (C) of Order XXVI CPC. Under Order XXVI Rule 10A(1) C.P.C where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such persons as it thinks fit directing him to enquire into such question and report thereon to the Court. Under Order XXVI Rule 10B(1) C.P.C where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary to expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the Court. Under Order XXVI Rule 10C(1) C.P.C where, in any suit, it becomes necessary to sell any movable property which is in the custody of the Court pending the determination of the suit and which cannot be conveniently preserved, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the Court. Under Order XXVI Rule 13 C.P.C where a preliminary decree of partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree. In a suit for injunction or partition, it is for the respective parties to plead and establish the averments made in the plaint. In such suits, where performance of a ministerial act is required to note down the physical features existing on the plaint schedule property, of course, an Advocate Commissioner is required to be appointed, but I am of the opinion that to perform such an act the parties mush establish their right. In the instant case, since the defendant is seeking appointment of an Advocate Commissioner to note down the physical features as well as to localise Plot Nos.81 part and 82 part of the respondents/plaintiffs and also Plot Nos.79 and 80 of the petitioner/defendant, it is for the respective parties to prove their right and title. If the plaintiffs fail to establish that they are the owners and possessors of land covered by Plot Nos.81 part and 82 part, they cannot succeed in the suits. Further, since the defendant is claiming Plot Nos.79 and 80, it is for him to prove the same by placing relevant evidence, but that part of his job cannot be relegated to the Advocate Commissioner. Therefore, I do not find any illegality in the impugned orders warranting interference by this Court. The Civil Revision Petitions are accordingly dismissed. There shall be no order as to costs. ___________________ V.ESWARAIAH, J Date: 18.03.2011 va [1] 1993 (2) ALT 589 [2] 2006 (3) ALD 87 [3] 2009 (2) ALT 59 [4] 1988(1) ALT 353 [5] 2010 (4) ALD 198 [6] (1987) 4 Supreme Court Cases 71