A.GOPAL REDDY Vs. R.SUBRAMANYAM REDDY

JUDGEMENT

(1.) The petitioner filed O.S.No.491 of 2011 in the Court of I Additional Junior Civil Judge, Chittoor, against the respondents herein, for the relief of perpetual injunction in respect of 9 cents of land in Survey No.419/9 of Ilavarapalli Village, Irala Mandal, Chittoor District. He stated that an extent of 20 cents were owned by him and out of it, he sold 11 cents to the 2nd respondent and when he was trying to construct a compound wall enclosing 9 cents separating the sold out 11 cents, the respondents started interfering. In an application filed under Order 39 Rules 1 and 2 C.P.C., the trial Court is said to have passed an order of status quo. The 1st respondent herein i.e., 1st defendant filed I.A.No278 of 2012 under Order 26 Rule 9 C.P.C. with a prayer to appoint an Advocate Commissioner to note the existing features viz., a hut and construction of compound wall. The petitioner opposed the application. The trial Court allowed the I.A. through order, dated 26.09.2012. Hence, this revision.

(2.) Heard Sri T.S.Anand, learned counsel for the petitioner and Sri K.Mohan Rami Reddy, learned counsel for the 1st respondent.

(3.) The suit filed by the petitioner is the one for the relief of perpetual injunction. The only question that assumes significance in that suit is whether the plaintiff is in possession and enjoyment of the schedule property. The burden squarely rests upon the petitioner to prove the possession. The appointment of commissioners to note the physical features or to undertake other related activities in a suit for injunction is a rarity. The reason is that the plaintiff cannot be permitted to gather evidence to prove his possession and he has to satisfy the Court through oral and documentary evidence. When that is the law on the subject, the appointment of commissioners at the instance of the defendant in such suits is a still rare phenomenon. At any rate, the occasion to appoint an advocate-commissioner would arise, if only the trial of the suit is in progress and a typical question, which needs the examination by a commissioner arises. The appointment of a commissioner cannot be made at the threshold. Such an effort would be treated as a measure to gather evidence. Admittedly, in the instant case, the trial is yet to commence and it is only for the petitioner herein to prove his possession. In case, the 1st respondent is of the view that the boundaries mentioned about the suit schedule are not correct or that the case presented by the petitioner is not true, he can take the relevant plea in the written statement and not only cross-examine the petitioner and the other witnesses examined by him but also adduce his own evidence. The appointment of a commissioner that too for noting the physical features at this stage is a pure step aimed at gathering of evidence.