KSHATRI AMMINIBAI Vs. BEDESI SURYANARAYANA SINGH

JUDGEMENT

(1.) The Petitionerfiled O.S.No.749 of 1994 in Hie Court of I Additional Junior Civil Judge, Kakmada.for the relief of perpetual injunction, in respect of some items of suit schedule property, and mandatory injunction, as regards another item; against the respondents. The suit was dismissed on 15-03-2000. She filed A.S.No.111 of 2002 in the Court of III Additional District Judge, Kakinada. During the pendency of the appeal, she filed I.A.No.2517 of 2004, under Order 26 Rule 9 C.P.C. for appointment of an Advocate Commissioner, to note down certain physical features.

(2.) According to the petitioner, no Advocate Commissioner was appointed during the pendency of the suit due to inadvertence, and thereby, an opportunity, to note the actual state of affairs, prevailing in the suit schedule property, was missed. She further pleaded that after dismissal of the suit, and during the pendency of the appeal, the respondents further encroached and made fresh constructions. She prayed for appointment of an Advocate Commissioner, with a view to apprise the appellate Court, of the actual state of affairs.

(3.) The application was resisted by the respondents. They contended that in respect of the suit schedule property, they filed O.S.No.229 of 1979, against the petitioner, and an Advocate Commissioner was appointed to submit a report, after due verification. It is stated that the report, in respect of the suit schedule property, obtained in O.S.No.229 of 2979 was filed as Ex.B-4, in the present suit, and that the trial Court took the same into account, and in that view of the matter, the present application is misconceived.