IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRDESH:: HYDERABAD THURSDAY, THE TWENTY SEVENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.769 OF 2011 Between: Siddala Narasimha …Petitioner A n d Gudla Pentamma and others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.769 OF 2011 ORDER: This civil revision petition is directed against the order dated 30.10.2010 in I.A.No.352 of 2008 in O.S.No.1718 of 2004, on the file of the VIII-Additional Senior Civil Judge, Ranga Reddy at L.B.Nagar. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the record. 3. The respondents herein filed the suit for declaration of title and recovery of possession of the plaint schedule property i.e., agricultural land admeasuring Ac.12-15½ gts in Sy.No.50/79 of Mucherla Village, Kandukur Mandal, Ranga Reddy District. The petitioner/defendant filed a written statement contesting the suit. After necessary issues were settled, the trial was conducted. Recording of evidence on both sides was completed and the matter reached the stage of arguments. At that stage, the plaintiffs filed I.A.No.352 of 2008 seeking a direction to the Assistant Director, Survey and Land Records, Ranga Reddy District to conduct a survey and demarcate the land by fixing the boundaries and note the physical features of the suit property. The petitioner/defendant filed a counter opposing the same. By the impugned order, the learned Senior Civil Judge allowed the application and appointed an advocate-Commissioner to survey and demarcate the suit schedule property for fixing the boundaries with the help of Assistant Director, Survey and Records, Ranga Reddy District. Aggrieved by the same, the defendant filed the present civil revision petition. 4. The learned counsel for the petitioner would contend that the trial Court erred in appointing an advocate-Commissioner for the purpose prayed for at a time when the suit reached the stage of judgment and a Commissioner cannot be appointed merely on the premise that no prejudice would be caused to the other side. 5. The plaintiffs filed the suit claiming to be the absolute owners of the plaint schedule property of Ac.12- 15½ gts in Sy.No.50/79 and seeking declaration of their title and for recovery of possession of the suit property. In the plaint schedule, the suit land is described as Ac.12- 15½ gts out of Ac.24-31 gts in Sy.No.50/79. Curiously, the boundaries on the north and east are noted as not known to the plaintiffs. The southern and western boundaries are noted as the boundary of Ekrajguda village of Mahabubnagar District. The suit land is stated to be in Mucherla village of Kandukur Mandal of Ranga Reddy District. As seen from the plaint schedule, it is clear that the plaintiffs themselves are not aware as to the location of the land regarding which the reliefs of declaration and recovery of possession are prayed for. 6. It is not disputed that earlier I.A.No.352 of 2008 filed by the plaintiffs for conducting the survey for the purpose of localizing the land and demarcating the boundaries was dismissed for default on 19.06.2009 itself. The plaintiffs claim that they came to know about the said dismissal only on 13.07.2010. Thereafter, the plaintiffs filed I.A.No.1711 of 2010 for condonation of delay of 407 days in filing the application for restoration of I.A.No.352 of 2008. It is not disputed that the said application was allowed and subsequently I.A.No.352 of 2008 was restored. In the affidavit filed in support of the said application I.A.No.1711 of 2010, the plaintiffs have stated that they were advised to file an application for restoration of I.A.No.352 of 2008 because survey is required to confirm the boundaries and to trace out the suit property by fixing the boundary stones. When the plaintiffs are seeking declaration of title in respect of the suit property, the burden entirely lies on them to establish their claim of ownership over the suit property. Here is a case where the plaintiffs, on their own showing, do not know where the suit property is situate and within what boundaries in respect of which they are seeking the relief of declaration of title and also recovery of possession. They filed I.A.No.352 of 2008 seeking a direction to the Surveyor of the Government to localize the land and demarcate the same by fixing the boundaries. The said course is nothing but an attempt to gather evidence in support of their claim. It is well settled principle that no advocate- commissioner can be appointed for the purpose of enabling a party to collect evidence in support of their claim. Being conscious of the same, the plaintiffs have, without seeking any appointment of advocate- commissioner, asked for a direction to the Assistant Director of Survey to conduct the survey and localize the land in respect of which they are claiming the reliefs. The trial Court, however, appointed an advocate– commissioner. Be that as it may, as rightly contended by the petitioner/defendant, it is always open to the plaintiffs to approach the survey authorities concerned and make a request for survey of the lands for the purpose of localization and demarcation by fixing the boundary stones under the provisions of the Surveys and Boundaries Act. Instead of availing such remedy, the plaintiffs filed the present suit for declaration and recovery of possession and in order to enable themselves to have the said reliefs, they are seeking the survey of the suit land for the purpose of localizing the extent in respect of which the reliefs are sought. Though the suit was filed in the year 2004, the application seeking survey was filed in the year 2008 and the same was dismissed for default on 19.06.2009. About a year later, the plaintiffs filed an application for restoration in I.A.No.352 of 2008 and, of course, the same was restored but the fact remains that in the meantime the trial has been completed, in the sense that recording of evidence on both sides was concluded and according to the petitioner/defendant, arguments were also heard in the matter. The learned counsel for the respondents/plaintiffs would, however, submit that the matter is at the stage of hearing the arguments. Whatever it be, appointment of an advocate-commissioner which, in fact, is not asked for by the plaintiffs, that too at this stage when the matter has reached fag end of trial and for the purpose for which it is prayed for, would certainly amount to an attempt on the part of the plaintiffs to gather evidence in support of their claim, which is impermissible and is intended only to fill up the lacunae in the evidence. 7. The learned counsel for the respondents sought to rely upon a decision in P.PEDDA SAIDAIAH AND OTHERS V. T. PADMAVATHI[1] wherein while setting aside the order of dismissal on a similar application by the trial Court, this Court appointed an advocate-Commissioner to demarcate the land with the help of Mandal Surveyor. In the above case, an application was filed for appointment of Commissioner in the year 1993, but the same was not pressed till 1997 till the matter reached the stage of arguments and the said petition was dismissed. This Court, therefore, observed that it is the duty of the Court to dispose of the interlocutory applications filed during the pendency of the suit within a reasonable time and having failed in discharge of its duty, the Court cannot put the litigant to sufferance. There cannot be any dispute regarding the above observation. But in the present case, the situation is different. In the above case, the dispute was whether the revision petitioner/defendant encroached upon the land belonging to the respondent/plaintiff or whether the respondent/plaintiff was claiming more than what he purchased under the registered sale deed dated 05.11.1973. It was, therefore, considered that the issue regarding the alleged encroachment can be effectively settled by getting the land surveyed by the revenue authorities. In the present case, the plaintiffs are not aware as to where the land, in respect of which they are seeking the relief of declaration of title and recovery of possession, is situate and by seeking a survey, they want the land to be localized and demarcated to enable them to claim the reliefs, which is nothing but an attempt to gather the evidence and the stage at which the request for such survey is pressed, would only indicate that the intention behind is to fill up the lacunae in the evidence. 8. In the circumstances, it is held that the impugned order, appointing an advocate-commissioner for the purpose mentioned therein, is unsustainable and the same is accordingly set aside. The trial Court shall, however, dispose of the suit on its own merits without in any way being influenced by any of the observations made hereinabove. 9. In the result, the civil revision petition is allowed. There shall be no order as to costs. _____________________ G.V.SEETHAPATHY, J 27th October, 2011 Lrkm. [1] 1997(5) ALT 818