JUDGMENT
1. Heard the learned Counsel for the petitioners.
2. It is submitted by Mr. P. Sree Rama Moorthy, learned Counsel for the petitioners that the petitioners are defendants 2 and 3 in the suit OS No.1/98 on the file of the Junior Civil Judge, Ramannapet. The respondent, alongwith the suit, filed an interlocutory application IA 2/98 to restrain the petitioners from interfering with his possession over the suit land. But, the trial Court did not grant the interim directions and ordered notice on the said application. It is also stated by the learned Counsel for the petitioners that no written statement has been filed in the suit till this date. That being so, the defendants 2 and 3 filed an application IA 77/98 before the trial Court in the suit for appointment of an Advocate Commissioner under Order XXVI, Rule 10, read with 151 CPC to ascertain as to who is in possession of the suit property as on the date of the presentation of the suit and also to note down the physical features and material evidence available at the suit land for the just and proper disposal of the petition filed for temporary injunction.
3. The learned Junior Civil Judge, after hearing both sides, dismissed the said application holding that in a suit for perpetual injunction, the fact that as to who is in possession of the property in dispute, has to be adjudicated by the Court after taking oral and documentary evidence and the Advocate-Commissioner cannot be appointed for the said purpose, as it would tantamount to substitute the decision of the Court. In support of his finding the learned Junior Civil Judge, relied on a decision of the learned single Judge in Puttappa v. Ramappa, . But, Mr. P. Sree Kama Moorthy, learned Counsel for the petitioners relies on a decision of the learned single Judge of this Court in K. Venkatasubbamma v. Y. Sitbba Ready, 1996 (1) APLJ 33, to the effect that in a suit for perpetual injunction, application to appoint an Advocate Commissioner to proceed to the suit schedule house to find out who is actually in possession of the suit schedule property cannot be rejected.
4. He also relies on a decision of the learned single Judge of this Court in Chintapaila Arvind Babu v. Smt. K. Balakistamma Alias Bhargavi, , which is to the following effect:
“(A) Civil Procedure Code (5 of 1908), Section 115, Order 26, Rule 9 – “Case which has been decided” – Petition praying for appointment of Commissioner for localising site in dispute with reference to documents of title – Order of dismissal of petition is case decided and is revisable.”
5. The above case has no application to the facts of the instant case. It deals with appointment of an Advocate-Commissioner for localising the site in dispute.
6. In this case, it is significant that neither in the interlocutory application filed before the learned Junior Civil Judge the petitioners have described as to, what is the suit property nor the respondent – plaintiff in his counter-affidavit has stated the nature of the suit property. But, at the Bar, it is stated that the suit property consists of Ac.4,20 guntas of dry land bearing Sy. No.236 situated at Chotuppal Village and Mandal. Though the petitioners stated that the purpose of appointment of an Advocate-Commissioner is to verify as to who is in actual possession of the suit property and also to note down the physical features of the suit land. No reason or purpose has been stated in the affidavit filed in support of the petition as to why the physical features should be noted by the Commissioner nor there is any allegation that the respondent-plaintiff, having filed the suit, is trying to change the nature of the property or indulging or damaging or wasting the suit property. There is no dispute with regard to the identity of the suit property.
7. In a suit for perpetual injunction, the Court has to adjudicate as to who is in actual possession of the suit property as on the date of institution of the suit on the basis of oral and documentary evidence adduced by the parties and the said function cannot be entrusted to the Advocate Commissioner.
8. In view of the above contractual facts there is no illegality or irregularity in the order passed by the lower Court. The CRP lacks merit and it is accordingly dismissed. No costs.