1) The plaintiffs in O.S.No.1043 of 2022, on the file of the Court of V Additional Civil Judge (Junior Division), Tirupati, filed the present revision petition against the order dated 11.12.2025.

2) The said suit was filed seeking permanent injunction against the defendants, their men etc., from in any way interfering with the peaceful possession and enjoyment of the plaint schedule property. Defendants filed their written statement along with counter claim in respect of the ”A” schedule property shown in “EFCD‟ therein for declaration of right, title and possession over the same. Mandatory injunction for removal of wall line shown in “EF‟ in the counter claim was also sought. Stating that the counter claim A-schedule property (Shown in red colour as “EFCD‟) is part and parcel of counter claim B-schedule property shown as ABCD, the defendants filed I.A.No.312 of 2023, alleging that the plaintiff / revision petitioner constructed temporary compound wall illegally on “EF‟ line, by encroaching upon the counter claim A-schedule property shown as “EFCD‟ and sought appointment of an Advocate Commissioner for measurement of disputed site as also its localization with reference to the registered document/s by taking assistance of a qualified surveyor. The petitioners / plaintiffs filed counter and resisted the application.

3) Learned Trial Court while opining that appointment of an Advocate Commissioner is not for ascertaining possession, that the same would not amount to gathering of evidence and that the report of the Advocate Commissioner would be an aid to determine the real question between the parties, allowed the application in question.

4) Heard Mr.N. Sai Akash, learned counsel for the petitioners. Also heard Mr. Kanderi Chethan, learned counsel for respondents. Perused the material on record.

5) Learned counsel for the petitioners made submissions inter alia to the effect that the order under revision is not sustainable as same is vitiated by material irregularities in exercise of jurisdiction vested in the learned Trial Court. Referring to the prayer / reliefs sought for in the I.A. in question, he submits that the respondents are seeking survey to be conducted as per their documents / sale deeds even before the evidence was adduced, that the same is impermissible. It is his contention that any report of the Advocate Commissioner in respect of the petition schedule property as sought for by the respondents would amount to gathering evidence, that the learned Trial Court without appreciating the matter in proper perspective erred in allowing the application seeking appointment of Advocate Commissioner.

6) Learned counsel further submits that the learned Trial Court ought to have appreciated that the admissibility and relevancy of the sale deeds can be determined only at the stage of recording evidence, that demarcation of land with reference to location, survey numbers, measurements must be with reference to documents / title deeds which are admitted by the Court in evidence. In support of the submissions, he placed reliance on the decision reported in Dammalapati Satyanarayana and others Vs. Datla Venkata Ramabhadra Raju @ D.V.R.Raju and Another (2006 (4) ALD 675). Referring to the averments in the affidavit filed in support of the Interlocutory application, he also submits that no cogent reasons were stated for seeking the appointment of Advocate Commissioner and further that though the respondents are aware of the death of original plaintiff, they have not taken steps to bring on record the Legal Representatives, that the learned Trial Court continued the proceedings against the dead person and the order under revision passed against the dead person is a nullity. Making the said submissions, learned counsel seeks to set aside the impugned order.

7) On the other hand, learned counsel for respondents made submissions to sustain the order under challenge. He submits that both parties purchased their respective properties through registered sale deeds, with reference to which the claim and the counter claim of schedule properties are involved and they acted as attestors of each other‟s property and the question of disputing the extents, much less, boundaries may not arise. In fact, it is the specific case of the respondents that the extents, as well as boundaries are clear and in such circumstances, the measurements of disputed site and its localization on the basis of registered documents would help the Court in resolving controversy. He submits that the relief sought for would not amount to gathering of evidence and the contention contra is unsustainable. While distinguishing the judgment in Dammalapati Satyanarayana case (1 supra), learned counsel placed reliance on decisions reported in Enugu Sanjeev Reddy Vs M.A.Masood (2020 (2) ALD 275 (TS)); P.Sreedevi Vs. IVLN Venkata Lakshmi Narsimha Prasad (2020 (6) ALD 99 (TS) (DB)); K. Dayanand and another Vs. P. Sampath Kumar (2015 (2) ALD 319) etc. Making the said submissions, learned counsel seeks dismissal of the revision petition as the same is devoid of merits.

8) On an appreciation of rival contentions, the point that arises for consideration is “Whether the appointment of Advocate Commissioner, in the facts and circumstances is not sustainable and the impugned order warrants interfere under Article 227 of the Constitution of India?”

9) Before answering the point in issue, it may be appropriate to mention that I.A. in question was filed on 18.05.2023. The original plaintiff died on 07.11.2023. Though the LRs were not brought on record in I.A. in question by the defendants / petitioners, it appears that the Legal Representatives got themselves added vide order dated 04.09.2024 in I.A.No.149 of 2024. On contest, learned Trial Court passed the impugned order on 11.12.2025. Therefore, the contention advanced by the learned counsel for the petitioners that the order has been passed against the dead person deserves no consideration.

10) In so far as the power of the Court under Order 26 Rule 9 of CPC, though is discretionary, has to be exercised in judicious manner depending upon the facts and circumstances of the each case. The Court has to consider the necessity to appoint an Advocate Commissioner by taking into consideration the pleadings of the parties. It is settled law that Advocate Commissioner can be appointed at any stage of the suit or during the pendency of the Appeal. If the parties seek to take aid of the provision i.e., Order 26 Rule 9 of CPC, for resolution of dispute, the same cannot be denied, except if invocation of the said provision is for the purpose of gathering evidence.

11) In the present case, the main contention advanced on behalf of the petitioners is that appointment of Advocate Commissioner for the purpose of localizing the suit schedule property, even before commencement of trial, that too on the basis of the title deeds, which are yet to be admitted by the Court in evidence, is not permissible and amounts to gathering of evidence. The view expressed by the learned Judge that Dammalapati Satyanarayana case (1 supra) is of no much aid, more particularly in the facts of the case on hand is untenable. Be that as it may.

12) The issue with regard to appointment of Advocate Commissioner, is the subject matter for consideration in a number of cases and the applicability of the decisions rendered therein, depends upon the facts and circumstances of each case.

13) In Badana Mutyalu & Others Vs Palli Appalaraju (Manu/AP/1460/2013 = 2013(5) ALD 376), a learned Judge of the erstwhile High Court of Andhra Pradesh at Hyderabad, examined the matter with reference to appointment of Advocate Commissioner in a suit for permanent injunction. The facts of the said case are more or less similar to the case on hand. The revision petitioners in the said case are the defendants in the suit. The respondent / plaintiff, pending suit, filed an application under Order XXVI Rule 9 of C.P.C., praying for appointment of Advocate Commissioner to take measurements of the property mentioned in the Registered Sale Deed and to find out whether the “ABCD‟ plan marked vacant site is part and parcel of the property mentioned in the said registered sale deed or not with the help of a qualified surveyor. It was contended on behalf of the petitioners that the application for appointment of an Advocate Commissioner was filed to collect the evidence, that earlier an Advocate Commissioner was appointed to note down the physical features of the property and therefore, another Advocate Commissioner cannot be appointed to localize the “ABCD‟ site which is the subject matter of the suit between the parties. The learned Judge after referring to the decisions rendered by High Court of Madras in Ponnusamy Pandaram Vs The Salem Vaiyappamalai Jangamar Sangam (1985(1) Mad LJ 380 = AIR 1986 Mad 33), Mahendranath Parida Vs Punanda Parida (AIR 1988 Orissa 248) as also two Division Benches of the erstwhile High Court of Andhra Pradesh and Dammalapati Satyanarayana case (1 supra) held that there is no error of jurisdiction committed by the Trial Court and dismissed the revision petition. It may be profitable to refer to the relevant portion of the learned Judge‟s order which reads thus:

                  “16 It has been held that a plaintiff could have a Commissioner appointed for local investigation even ex-parte on the date of the suit. It has been so held by a Division Bench of this Court in C. Veeranna Vs. C. Venkatachalam [MANU/AP/0129/1959 : AIR 1959 AP 170 : 1958 ALT 792] consisting of P. Chandra Reddy, Offg. C.J. (as he then was) and Seshachalapati, J. It was argued before the learned judges that Rule 18 of Order 25 contemplates the issue of notices before the appointment of the Commissioner. This contention was rejected and it was held that Rule 18 contemplated the issue of notices after the appointment of a Commissioner, but not before such appointment. There was, therefore, no mandate in the statute that an ex parte Commissioner could not be appointed. The learned judges observed:

                  Rule 18 contemplates a situation after the appointment of a Commissioner and not before the commission is issued. There is nothing in Rule 9 to warrant a contention that a duty is cast on the Court to issue notice before an order is passed under that rule. It is open to the Court to issue an ex parte commissioner if it deems that a local investigation is requisite for the purpose of the suit.”

                  17. This decision of the Division bench was followed in Savitramma and another v. B. Changa Reddy [1988(1) ALT 353]. In that case, it was held:

                  16. The question as to when a Commissioner could be appointed should be within the wide discretion of the trial Court, but it cannot be said that no commissioner could be appointed before the issues are framed or the evidence is led......

                  18. So it has been held that either party to the suit could have a Commissioner appointed even before the trial. In view of the above decisions, I hold that in situations where there is controversy as to identification, location or measurement of the land, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared. The party against whom the report may have gone may choose to adduce evidence in rebuttal.”

14) In Enugu Sanjeev Reddy case (2 supra), the respondent / plaintiff filed an application for appointment of Advocate Commissioner under Order 26 rule 9 CPC to localize the plaint schedule property with the help of Mandal Surveyor to determine whether it falls in Sy.No.38/1 as contended in the written statement. A counter opposing the same was filed contending that there is nothing to be determined by the Advocate Commissioner, the plaintiff without leading evidence cannot file such application. While confirming the order of Trial Court allowing the application for appointment of Advocate Commissioner, learned Judge held as follows:

                  “11. The object of local investigation under Order 26 Rule 9 C.P.C. is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but could be taken only from its peculiar nature on the spot. Such evidence will elucidate a point which may otherwise leave any doubt or ambiguity in record.

                  12. In the instant case, the location of the plot claimed by the plaintiff, whether it is in Survey No.38/1 or 43/B can only be ascertained through an Advocate-Commissioner as such evidence is available only on the spot.

                  13. Though the counsel for petitioner contended that the appointment of an Advocate-Commissioner cannot be permitted, this Court in Jajula Koteshwar Rao vs. Ravulapalli Masthan Rao, 2015 (6) ALD 483 and Badana Mutyalu and Badana Laxminarayana vs. Palli Appalaraju, 2013 (5) ALD 376, held that where there is controversy as to identification, location, or measurement of the land, local investigation should be done at an early stage so that parties are aware of the report of the Commissioner and go to the trial prepared. It also held that there is no rule that an Advocate-Commissioner cannot be appointed before issues are framed or evidence is led and relied upon the decision of this Court in Savitramma and another v. B. Changa Reddy, 1988 (1) ALT 353.”

15) In P. Sreedevi case (3 supra) dealing with appeals (CMAs) under Order 26 Rule 9 and Order 39 Rule 1 and 2 of CPC, a Division Bench opined that the application seeking appointment of Advocate Commissioner should have been allowed first by the learned Trial Court, in the light of the dispute with regard to identity of the property, and it is profitable to reproduce the relevant portion of the Order herein below:

                  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 Sarup, (2008) 8 SCC 671, 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 v. Palli Appalaraju, (2013 (5) ALD 376) 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 v. Ravulapalli Masthan Rao, (2015 (6) ALD 483) 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.

16) In CRP No.133 of 2019 (Jami Dasaradhudu Vs Polipilli Simhachalam and another) this Court had an occasion to deal with similar fact situation as in the present case. Petitioner/plaintiff in the said revision petition filed an application under Order 26, Rule 9 of CPC seeking appointment of Advocate Commissioner to measure the properties of both the parties with reference to their respective documents by taking assistance of Mandal Surveyor and also note down the physical features therein. The said application was resisted and the learned Trial Court dismissed the same on the premise that Advocate Commissioner need not be appointed to note down the physical features, as it is nothing but collection of evidence and that the suit is coming up for framing issues, but not for trial and therefore, application to appoint Advocate commissioner to note down the physical features and measurements is only for collection of evidence. Reference was made to decision in Bandi Samuel and another Vs Medida Nageswara Rao (2017 (1) ALD 582) wherein a catena of decisions on appointment of Advocate Commissioner were discussed and the revision petition was allowed in view of conclusions therein that the evidence with regard to encroachment would only be available on the spot and no amount of oral evidence would establish the fact and where there is requirement of localization of disputed property and adjudication as to the encroachment or otherwise in the light of nature of the lis, an Advocate Commissioner can be appointed.

17) This Court is of the considered opinion that the above referred decisions are applicable to the facts of the present case. Further, learned Trial court while distinguishing the decision in Dammalapati Satyanarayana (1 supra) assigned cogent reasons for allowing the I.A. in question. The discretion exercised by the learned Trial Court and opinion expressed by it that the report of the Advocate Commissioner would he helpful to determine the real question in controversy between 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.

18) In the result, the Civil Revision Petition is dismissed. However, the Advocate Commissioner while execution of warrants in terms of the impugned order, shall take into consideration the registered documents of both sides and submit the report. No costs.

19) Consequently, the Miscellaneous Applications pending, if any, shall also stand dismissed.