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Andhra High Court · body

2012 DIGILAW 130 (AP)

Thalla Sulochana v. Thalla Isaac

2012-02-07

C.V.NAGARJUNA REDDY

body2012
Judgment : This Civil Revision Petition arises out of Order, dated 28-11-2011, in IA.No.248 of 2011 in OS.No.56 of 2009, on the file of the learned Senior Civil Judge at Sircilla. 2. The petitioner is defendant No.1 in the suit filed by respondent No.1 for declaration of title and permanent injunction in respect of the suit schedule property. The petitioner is none other than the step mother of respondent No.1/plaintiff. It is the case of respondent No.1 that his father has executed a registered gift deed, which was acted upon during the lifetime of the donor by delivery of possession. The petitioner has pleaded that she is living in a part of the suit schedule premises under a family settlement and that therefore, the purported gift deed was not acted upon. The petitioner filed IA.No.248 of 2011 for appointment of an Advocate-Commissioner to note down the physical features for elucidation of the matter in dispute. This application was dismissed by the lower Court. Assailing this Order, the petitioner filed the present Civil Revision Petition. 3. At the hearing, Sri M.Rajamalla Reddy, learned Counsel for the petitioner, has strenuously contended that the Court below has committed a serious error in dismissing the petitioner’s application. He submitted that, in order to prove the petitioner’s stand that she is living in one portion of the suit schedule premises and thereby, the alleged gift deed has not been acted upon, it is necessary to appoint an Advocate-Commissioner. 4. Under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short ‘the CPC’), the Court issues commissions inter alia for the purpose of elucidating any matter in dispute. As noted above, while it is the case of respondent No.1 that the gift deed executed by his father was acted upon, the petitioner is relying upon the family settlement, on the strength of which she is, allegedly, in possession of a part of the suit schedule property. There is no dispute regarding the identity or the boundaries of the suit schedule property. Having regard to the nature of the respective pleadings of the parties, the dispute needs to be adjudicated with reference to the evidence to be produced by the parties. The law is well settled that an Advocate-Commissioner is not appointed for the purpose of gathering evidence in support of one of the parties. Having regard to the nature of the respective pleadings of the parties, the dispute needs to be adjudicated with reference to the evidence to be produced by the parties. The law is well settled that an Advocate-Commissioner is not appointed for the purpose of gathering evidence in support of one of the parties. The purpose of the petitioner seeking appointment of Advocate-Commissioner is to lend support to her plea that the suit schedule property consists of different portions and that the petitioner is living in one such portion. In my opinion, this falls in the realm of evidence, which needs to be let in by the petitioner by independent evidence and not by obtaining report of the advocate-commissioner. In this view of the matter, I do not find any reason to interfere with the order under revision. 5. Accordingly, this Civil Revision Petition is dismissed. 6. As a sequel, CRPMP.No.182 of 2012, filed by the petitioner for interim relief, is disposed of as infructuous.