BONGU RAMULU Vs. GUDUR NARENDER REDDY

JUDGEMENT

(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, AIR 1996 Karat. 257. 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.