HC - the impugned order, which is bereft of any reasons justifying the appointment of the Advocate Commissioner for the purpose of survey and localization is not sustainable

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD

FRIDAY, THE TWENTY NINETH (29^TH) DAY OF JUNE,

TWO THOUSAND AND TWELVE

Present:

HON’BLE SRI JUSTICE G.V.SEETHAPATHY

C.R.P.No.1840 of 2012

Between:

Naliganti Sarojana

… Petitioner

And:

Naliganti Benhar & others

… Respondents

ORDER:

This civil revision petition is directed against the order dated 29.08.2011 in IA No.189 of 2011 in OS No.183 of 2005 on the file of the II Additional Senior Civil Judge, Warangal, wherein the said application filed by the respondents 1 to 8 herein under Order 26 Rule 9 CPC seeking appointment of the Advocate Commissioner for local inspection and to note down the physical features of the suit property, was allowed.

2. Heard the learned counsel for the petitioner and the learned counsel for the respondents 1 to 8. Perused the record.

3. The respondents 1 to 8 herein-plaintiffs filed suit for partition and separate possession. The petitioner-5^th defendant along with other defendants filed written statement contesting the suit. During the course of trial, the plaintiffs filed IA No.189 of 2011 seeking appointment of the Advocate Commissioner to make local inspection of the schedule property and to note down the physical features. In the affidavit filed in support of the petition, the plaintiffs have stated that inspite of grant of status-quodirecting both parties not to change the existing physical features, the defendants are trying to change the existing physical features and therefore, it is necessary to appoint an Advocate Commissioner to make local inspection and to note down the physical features. The trial Court however by impugned order appointed the Advocate Commissioner to conduct survey in the presence of both parties to locate the suit schedule property. Such a direction seeking survey of the suit land and localization thereof is no where prayed for by the plaintiffs in their application in IA No.189 of 2011. Even the affidavit filed in support of the application does not refer to any dispute regarding identity of the property. The only grievance of the plaintiffs is that the defendants are changing the physical features of the land notwithstanding the order of status-quogranted by the Court. The impugned order granting a relief, which is not prayed for by the petitioners at all is wholly unsustainable. Further, the impugned order does not disclose any reasons for justifying the appointment of the Commissioner to conduct survey and localize the schedule land, except stating that the appointment of the Advocate Commissioner is just and necessary for better adjudication of the matter. On that ground also, the impugned order, which is bereft of any reasons justifying the appointment of the Advocate Commissioner for the purpose of survey and localization is not sustainable. The impugned order is accordingly set aside. Consequently, IA No.189 of 2011 stands dismissed. The plaintiffs are at liberty to file appropriate application before the trial Court if so advised for appointment of the Advocate Commissioner for appropriate purpose.

4. In the result, the civil revision petition is allowed. No order as to costs. Miscellaneous petitions, if any shall stand closed.

__________________

G.V.SEETHAPATHY, J

Date: 29.06.2012

bss