(Prayer: Petition under Article 227 of the Constitution of India,praying that in the circumstances stated in the grounds filed herein,the High Court may be pleased toPleased to set aside the Order and Decreetal Order dated 04-03-2025 passed in I.A.No.2211 of 2024 in O.S.No.312 of 2000 on the file of the Court of the Principal Junior Civil Judge, Addanki and allow the I.A.No. 2211 of 2024 in O.S.No.312 of 2000 on the file of the Court of the Principal Junior Civil Judge, Addanki and pass)
1. The present C.R.P. is filed aggrieved by the order and decree dated 04.03.2025 passed in I.A.No.2211 of 2024 in O.S.No.312 of 2000 on the file of the Court of Principal Junior Civil Judge, Addanki wherein the application filed under Order XXVI Rule 9 of CPC to appoint an Advocate Commissioner to determine the survey number of the suit schedule property with the assistance of the Mandal Surveyor, Addanki was dismissed.
2. Petitioners herein are the plaintiffs and respondents herein are the defendants in the suit. For the convenience of this Court the parties were referred as they are arrayed in the suit.
3. The suit was filed by the plaintiffs for specific performance basing upon the agreement of sale deed dated 28.01.1988 and for permanent injunction against defendant Nos.2 to 7. Pending suit the plaintiffs also filed I.A.No.2211 of 2024 under Order XXVI Rule 9 of CPC for appointment of an Advocate Commissioner to determine the survey number of suit schedule property with the assistance of Mandal Surveyor, Addanki for impounding of the suit sale agreement dated 28.01.1988.
4. Learned counsel for the petitioners submits that the Court below erroneously dismissed the I.A.No.2211 of 2024 on the ground that the plaintiffs were unable to establish that where the suit schedule property was situated in Sy.No.652/2. Moreover when the matter is posted for arguments, the plaintiffs filed this application under Order XXVI Rule 9 of CPC, since the application I.A.No.3 of 2024 was dismissed for impounding the agreement of sale dated 28.01.1988 vide order dated 24.09.2024, wherein the District Registrar rejected the claim of the petitioners for impounding the document on the ground that the subject property was situated in Sy.No.652/1, which is enlisted under the prohibitory properties list under Section 22(A) of the Registration Act, 1908 and therefore, again filing this application is nothing but to drag the matter for one reason or the other which is contrary to the ratio laid down by the Hon’ble Supreme Court in B Usha Devi & others vs. Ram Kumar Singh & others(2024 INSC 599).
5. Learned counsel for the petitioners submits that it is settled law that where the demarcation of the disputed land is warranted, it would be appropriate for the Court to direct to investigate by appointing an Advocate Commissioner under Order XXVI of the CPC, but the Court below is erred in dismissing the I.A which is contrary to the judgment of this Hon’ble Court in Badana Mutyalu and another vs. Palli Appalaraju(2013 (5) ALD 376) wherein it is held that where there is a controversy as to identification, location and measurement of the land, the local investigation should be done by appointing an Advocate Commissioner. Therefore, the Court below shall appoint an Advocate Commissioner for identification, and assigning survey number in respect of suit schedule property otherwise the Court below would not enable to resolve the dispute between the parties in the absence of specific identification, location and survey number where the property is situated. Therefore, the impugned order of dismissal dated 04.03.2025 is liable to be set aside.
6. Learned counsel for the petitioners relied upon the following judgments:
(a) In Smt. P. Sreedevi vs. IVLN Venkata Lakshmi Narsimha Prasad3 the High Court of Telangana observed as under:
“37. When the appellants are claiming land in Survey No.85/1, a separate sub-division of Survey No.85, and the respondents are claiming land in Survey No.85/2, a different sub-division in the same survey number, it was incumbent on the part of the Court below to first appoint a Surveyor in I.A.No.620 of 2017 and get first Sy.No.85/1 and Sy.No.85/2 on the ground and the plaint schedule land localized as was sought by the appellants.
38. In Haryana Waqf Board v. Shanti Sarup1, the Supreme Court held that if it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC.
39. In Badana Mutyalu and Ors. vs. Palli Appalaraju , this Court has held that in situations where there is controversy as to identification, location or measurement of the land, local investigation should be done by appointment of an Advocate Commissioner.
40. This was reiterated in Jajula Koteshwar Rao vs. Ravulapalli Masthan Rao(2020 (4) ALT) that the object of the local investigation under Order XXVI Rule 9 CPC is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but can be taken only from the peculiar nature, on the spot. This Court held that the Commissioner in effect is a projection of the Court appointed for a particular purpose; and where there is an allegation of encroachment by one party which is denied by the other, oral evidence cannot come to an aid of a party and an Advocate Commissioner may be appointed to ascertain this fact; and that.
41. Thus when there is a dispute of localization or demarcation of property, the best course of action is to appoint an Advocate- Commissioner / Surveyor for localization.
(b) In Anusuri Krishna and others vs. Kundala Nageswara Rao and others(CRP No. 2163 of 2024 (APHC) (25 April 2025)) this Court held as under:
“10. Before adverting to the Order under Revision, it may be appropriate to note that the power of the Court under Order XXVI, Rule 9 of C.P.C., is discretionary, and the same has to be exercised in a judicious manner, depending on the facts and circumstances of each case. It has to appreciate the overall case by taking into consideration the pleadings of the parties and the reliefs claimed with reference to the controversy between the parties and the necessity to appoint Advocate Commissioner in deciding the dispute. It is settled Law that an Advocate Commissioner can be appointed at any stage of the suit or during the pendency of the appeal.
11. In the present case, the application seeking appointment of Advocate Commissioner was filed on the premise that the properties claimed by the revision petitioners / defendants are different and if the same are ascertained by a Surveyor by fixing the boundaries with reference to the documents and a report is filed by the Commissioner, the same would meet the ends of justice and by virtue of the appointment of Commissioner, no prejudice will be caused to either parties. As noted earlier, the petition was opposed, inter alia, contending that the same is filed for gathering evidence and as such, the Commissioner cannot be appointed.
22. In Haryana Waqf Board's case (referred to supra), the Hon'ble Supreme Court was dealing with an appeal filed by the Punjab Wakf Board- plaintiff in a suit for declaration and injunction. The Second Appeal filed by the Waqf Board was dismissed by the High Court. The Hon'ble Supreme Court while observing that in the case on hand, an application was filed under Order XXVI, Rule 9 of C.P.C., which was rejected by the Trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order XXVI, Rule 9 of C.P.C., allowed the appeal.
26. In the light of the above cited decisions, which lend support to the case of the respondent / plaintiff and the relief granted by the learned Trial Court to measure the property of both the parties as per the documents with the assistance of Mandal or any licensed surveyor, the same would not amount to gathering of evidence. The opinion expressed by the learned Trial Court that the measurement of the properties of both the parties as per the documents would help in better appreciation of evidence produced by the parties cannot be viewed as contrary to Law or perverse, warranting interference by this Court in exercise of power under Article 227 of the Constitution of India. The point is answered accordingly.
7. Learned counsel for the respondents submits that as per the schedule of the agreement of sale dated 28.01.1988, the survey number mentioned as 652 and even in the suit schedule of property was also described as at Sy. No.652 of Kalavakur Village. Much before to the subject agreement, the Sy.No.652 was bifurcated into Sy.Nos.652/1 and 652/2. As per the letter addressed by the Sub- Registrar, Addanki dated 26.09.2023 the property situated in Sy.No.652/1 was enlisted under prohibited properties list under Section 22(A) of the Registration Act, 1908. Therefore, the subject property as opined by the Sub-Registrar is situated in Sy.No.652/1, neither can be registered nor can be impounded. Therefore, the relief sought by the petitioners for impounding of the agreement of sale was rejected. Until and unless the said proceedings were set aside or the petitioners are able to prove before the Court by way of evidence that the subject property is in 652/2 and not in 652/1, the petitioners are not entitled any relief much less as claimed in the suit. He also relied upon the judgment of erstwhile High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in K. Sambasiva Reddy v. Chilla Rama Rao Reddy and others(2016 (6) ALD 61):
8. Heard both the counsel and perused the material placed on record.
9. The present suit is filed for specific performance pursuant to the agreement of sale dated 28.01.1988. The said suit was filed after 12 years of the alleged execution of the agreement of the sale i.e., in the year 2000 as O.S.No.312 of 2000. It is an admitted fact that the said suit was posted for arguments. At this stage, the present application I.A.No.2211 of 2024 came to be filed by the plaintiffs under Order XXVI Rule 9 of CPC seeking appointment of an Advocate Commissioner for identification of suit schedule property and for assigning proper survey number with the assistance of Mandal Surveyor, Addanki is nothing but an abuse of process of law since the plaintiffs already filed I.A.No.3 of 2024 for impounding the agreement of sale dated 28.01.1988 with the District Registrar concerned and invited proceedings from the Sub-Registrar that the subject property in Sy.No.652/1 was fell within the prohibitory of properties list under Section 22(A) of the Registration Act, 1908. It appears that the plaintiffs themselves are neither duly identified the property nor in which survey number it is actually situated. The contention of learned counsel for respondents is that the said bifurcation of Sy.No.652 was taken place in the year 1984 and admittedly the agreement of sale was entered by the plaintiffs and defendants in the year 1988. While so, at the time of execution of agreement of sale itself the plaintiffs should have been taken care of about the exact survey number where the suit schedule property is situated but they kept quiet about the suit schedule property where it actually situated for more than four decades ignoring the settled doctrine of caveat emptor i.e., “Beware while purchasing”. After its bifurcation of decades ago filed this suit but plaintiffs did not know about the said bifurcation and after its bifurcation filing of present petition at the time of arguments for appointment of an Advocate Commissioner for localization, measurements and identification or assigning of survey number is nothing but with an intention to drag the suit proceedings even after long pending of 26 years. It is further observed that once the property was enumerated as prohibitory property under Section 22(A) of the Registration Act, 1908, it is for the petitioners to take steps by initiating proper proceedings for removal the said property from prohibitory properties list under Section 22A of the Registration Act, 1908.
Admittedly, in the schedule of agreement of sale as well as suit schedule property the survey number mentioned as 652 only even at the time of subject agreement, the subject property is not freehold and not permitted any alienation. As contended by learned counsel for the petitioners, there is no limitation for the agreement in the absence of any specific date for performance of the agreement as per Article 54 of the Limitation Act. The said submission of the counsel appears to be contrary to the facts in hand and ratio as held by the Hon’ble Apex Court in B Usha Devi & others vs. Ram Kumar Singh & others (Supra1) as under:
“8.We need not enter into the other issues as we are convinced that the suit was barred by limitation. The limitation under Article 54 of the Limitation Act, 1963 for instituting a suit for specific performance of a contract would be three years from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. Article 54 of the Limitation Act, 1963 is reproduced hereunder:
| Description of suit | Period of limitation | Time from which period begins to run |
| For specific performance of acontract | Three years | The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. |
It speaks that the performance of the agreement can be viewed from the entire terms of the agreement wherein it is mentioned that the sale deed would be executed within reasonable time from the date of the said agreement. Therefore, the limitation is 3 years thereafter and it cannot be extended decades together. Therefore, the judgment relied upon by the learned counsel for the petitioners is not all applicable to the present facts of the case and other judgments relied upon by learned counsel for the petitioner i.e., Badana Mutyalu and another vs. Palli Appalaraju (Supra 2) Smt. P. Sreedevi vs. IVLN Venkata Lakshmi Narsimha Prasad (Supra 3), Anusuri Krishna and others vs. Kundala Nageswara Rao and others (Supra 4) are also not applicable to the present facts and circumstances of the case.
10. As contended by learned counsel for respondents, in view of the rejection letter addressed by the Sub-Registrar, Addanki the property in Survey No.652/1 is enlisted as prohibitory property list under Section 22(A) of the Registration Act, 1908 is valid and sustainable for the reason that the schedule of agreement of sale as well as suit schedule property are specifically denotes as Survey No.652 and petitioner does not know in which survey number the subject property is situated since decades together. It is a mandatory as per the Andhra Pradesh Survey and Boundaries Act, 1923 the competent authority should issue notice to the parties interested and owners and landholders before the sub-division of the property/land. Since the petitioners are mere agreement holders the notice might have been served upon their vendor. More over as mentioned the sub-division taken place in the year 1984, it is a sheer negligence on the part of the petitioners while drafting the schedule of the agreement of sale. In K. Sambasiva Reddy v. Chilla Rama Rao Reddy and others (Supra 4) the High Court of Judicature at Hyderabad for the State of Telangana and for the State of Andhra Pradesh held thus:
“5. Under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, the main purpose of appointing an Advocate Commissioner is to elucidate any matter in dispute. It does not appear from the pleadings of the parties that the identity of the property is in dispute and therefore the question of localizing the property does not arise. It is therefore wholly unnecessary for the petitioner to seek appointment of an Advocate Commissioner. Being the plaintiff, the burden is on him to prove his case by producing required evidence and he cannot seek to rely upon the help of an Advocate Commissioner for this purpose. Unless he has material in his possession to show that he has title over the suit schedule property, he should not have filed the suit at all. If, for any reason, the petitioner wants to establish the identity of the property with reference to the boundaries mentioned in the documents on ground, he is always entitled to seek survey of the property by approaching the survey officials on his own, and produce the survey reports and examine the surveyor concerned as his witness. Instead of following this procedure, the petitioner appeared to have devised a shortcut method of filing the application for appointment of an Advocate Commissioner. This, in my opinion, surely is not the purpose for which the Advocate Commissioner is appointed.”
11. On perusal of the above judgment, it is an unnecessary pleading on the part of the petitioners to seek appointment of an Advocate Commissioner being it is plaintiffs’ burden to prove their version by adducing evidence and they cannot sought help for appointment of an Advocate Commissioner for this purpose unless they have material in their possession to show that they have title over the suit schedule property, they should not have filed the suit at all. If for any reason the petitioners want to establish the identity of the property, they always entitled to seek survey by approaching survey officials on their own and can produce survey reports to the survey concerned as witness but they cannot sought for appointment of an Advocate Commissioner for assigning the survey number. Whereas the Advocate Commissioner is not a Competent Authority to assign any survey number or change the survey number. It is for the Revenue Authorities to assign or change the survey number and extent of the property. Instead of following that procedure the petitioners appeared to have chosen short-cut method by filing this application for appointment of an Advocate Commissioner, without there being any vested right what-so-ever in their favour.
12. For the reasons stated as supra and in view of the facts and circumstances of the case, this Court is of the considered opinion that the present application is filed at the time of arguments after lapse of 25 years of the suit is only to drag the matter for one reason or other. This Court finds no jurisdictional error or perversity in the order passed by the Court below warranting interference under the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India.
13. Accordingly, the CRP is dismissed.
As a sequel, interlocutory applications if any pending, shall stand closed.