Court holds that appointing Advocate Commissioner at the threshold for property identification amounts to impermissible evidence gathering; trial court must first consider evidence adduced by parties.
In a significant judgment dated November 4, 2026, the Telangana High Court, presided by Mr. J. Sreenivas Rao, J., set aside the trial court's order allowing the appointment of an Advocate Commissioner at the initial stage of a suit for perpetual injunction filed by Ramadugu Madhusudhan and another against Bhukya Srinu.
The dispute arose over the identification and boundaries of certain properties located in survey numbers 273/4, 275/1, and 275/4 in Mahabubabad. The plaintiffs had sought a perpetual injunction restraining the defendant from interfering with their possession and enjoyment of the suit properties. The defendant challenged the suit by claiming that the plaintiffs had incorrectly stated the property boundaries and did not hold rightful title.
The trial court had permitted the defendant's application under Order 26 Rule 9 of the Code of Civil Procedure (CPC) and Section 151 CPC for appointing an Advocate Commissioner, with assistance from the Assistant Director of Survey and Land Records, to identify the properties and note their physical features. This appointment was made even before the commencement of trial.
The High Court scrutinized this order and observed that such premature appointment of an Advocate Commissioner amounted to gathering evidence, which is impermissible at the threshold stage of trial. The Court emphasized that the initial burden to prove the identity and boundaries of the property lies with the plaintiff through evidence adduced in court. Only after the parties have presented their evidence and if ambiguity regarding the property boundaries persists, the Court may find it necessary to appoint an Advocate Commissioner for local investigation and assistance.
The Court relied on precedents from the Andhra Pradesh High Court, including A. Gopal Reddy v. R. Subramanyam Reddy and Arvind Kumar Agarwal v. Legend Estates (P) Ltd., which highlighted that appointing an Advocate Commissioner at the beginning of the trial to aid in evidence gathering is impermissible. The Court further clarified that while the Advocate Commissioner can be appointed to note physical features and demarcate boundaries, such appointments should not be used as a substitute for evidence or for establishing possession claims.
Rejecting the defendant's contention that the appointment was necessary to resolve the dispute, the High Court found that the trial court had failed to record specific reasons justifying the appointment at such an early stage. The Court therefore quashed the trial court's order and allowed the civil revision petition filed by the plaintiffs.
However, the Court left open the possibility for the trial court to appoint an Advocate Commissioner at a later stage, either suo motu or on application by the parties, if after considering the evidence, the court finds it necessary for effective adjudication.
This judgment underscores the importance of adhering to procedural safeguards in civil litigation, particularly in suits relating to property disputes, and cautions against premature investigative steps that preempt the evidentiary process.
Bottom Line:
Appointment of Advocate Commissioner at the threshold in a suit for perpetual injunction to identify and demarcate property boundaries amounts to gathering evidence and is impermissible unless the trial court finds it necessary for effective adjudication after considering the evidence adduced by the parties.
Statutory provision(s): Order 26 Rule 9 CPC, Section 151 CPC, Article 227 Constitution of India
Ramadugu Madhusudhan v. Bhukya Srinu, (Telangana) : Law Finder Doc Id # 3017449
