The Telangana High Court quashed a trial court order, appointing an Advocate as a Court Commissioner to identify disputed lands in a possession suit in the presence of Survey and Land Records Department personnel, holding that such an appointment at the threshold even before commencement of trial amounts to 'gathering evidence'.

The single judge bench of Justice J. Sreenivas Rao said:

"A perusal of the impugned order reveals that the learned trial Court, without recording any specific reason as to why the appointment of advocate commissioner is required for adjudication of the dispute at threshold, only extracted the averments of the affidavit and counter in I.A.No.534 of 2025 as well as the judgments relied upon by the parties, allowed the application as prayed for, which is not permitted under law. In the event if the Court came to conclusion that to resolve the controversy involved, if the Court is unable to decide the matter basing on the material evidence on record and if the assistance of the Advocate Commissioner is required to resolve such controversy involved in the suit, the Court may appoint the Advocate Commissioner either suomotu or basing on the application filed by either of the parties and that stage is not yet reached in the present case.

Hence, this Court is of the considered view that the application filed by the defendant for appointment of advocate commissioner for identification of the suit lands in Sy.Nos.273/4, 275/1 and 275/4 and to note down physical features of suit land with the assistance of Assistant Director of Survey and Land Records, Mahabubabad, at this stage, amounts to gathering of evidence".

The court also observed that in a simple suit for perpetual injunction, the plaintiff is initially required to prove the identity of the property, and an advocate commissioner cannot be entrusted to do the same before the parties have adduced evidence before the court.

“….It is relevant to mention that in a suit for perpetual injunction, the initial burden lies upon the plaintiff to prove his/her case and also the Court is having a power to appoint an advocate commissioner to note down the physical features of the suit schedule property at any point of time even before the commencement of trial. However, in the case on hand, the defendant filed an application seeking appointment of advocate commissioner for identification of the suit land within the boundaries…”, the court pointed out while setting aside the trial court order.

For context, the petitioners/plaintiffs preferred a suit before a Mahabubabad Civil Judge, in order to restrain the defendant from interfering with their possession and enjoyment over the suit schedule properties.

The defendant filed a written statement in October 2025, wherein he stated that the plaintiffs had wrongfully identified the boundaries of their land, in an attempt to occupy his[defendant's] property.

Soon thereafter, the defendant filed an interim application seeking the appointment of an Advocate Commissioner to identify the plots of land in dispute. The trial court allowed the said application in June 2026. The Advocate Commissioner was also required to note down the physical features of the lands in question, along with its boundaries, with the assistance of the Assistant Director, Survey and Land Records.

Aggrieved by the order in the IA, the plaintiffs approached the High Court.

Adv. N.V.R. Rajya Lakshmi for the plaintiffs/petitioners contended that the application was filed before the commencement of the trial and that the appointment of a commissioner at this stage is impermissible.

It was specifically submitted that the boundaries mentioned in the suit schedule properties are correct, as mentioned in the plaintiffs' counter. Whether or not such assertions are correct would come to light during the trial, the petitioners contended.

To the contrary, Adv. K. Siddhartha for the defendant argued that the plaintiffs had no right or interest over the schedule properties. Since wrong boundaries to usurp the defendant's plots are mentioned in the suit, appointment of an Advocate Commissioner was required to resolve the same, it was added.

The court, on the other hand, noted that the defendant had filed the application immediately after filing the written statement, much before the trial.

The court opined that though a commissioner can be appointed at any point of time to note down the physical features of the suit schedule property, it was not the sole requirement in the current case as per the IA. In the IA, the defendant had also sought for the identification of the suit lands within the boundaries, the court inferred.

“...In the event if the Court came to conclusion that to resolve the controversy involved, if the Court is unable to decide the matter basing on the material evidence on record and if the assistance of the Advocate Commissioner is required to resolve such controversy involved in the suit, the Court may appoint the Advocate Commissioner either suo motu or basing on the application filed by either of the parties and that stage is not yet reached in the present case….”, the court noted further in the order.

Referring to precedents such as A. Gopal Reddy v. R. Subramanyam Reddy(2013) and Arvind Kumar Agarwal v. Legend Estates (P) Ltd(2014), the Court iterated that the initial burden lies upon the plaintiff to prove the identity of the property by adducing his own evidence. It would only be after this stage that the Court may appoint an Advocate Commissioner if any ambiguity persists, the court added further.

Reference was also made to Order XXVI Rule 9 CPC, which empowers the Court to issue a commission for local investigation when such investigation is required for deciding a dispute.

The Court distinguished the judgments relied upon by the respondent/defendant, noting that in those particular cases, the appointment of a commissioner was either for noting physical features alone or where there was a genuine boundary dispute requiring demarcation.

However, the current IA sought comprehensive reliefs such as identification of the suit lands, the court pointed out.

Hence, the High Court set aside the trial court's order, and allowed the civil revision plea.

“…However, this order will not preclude the learned trial Court from appointing a Commissioner/Advocate Commissioner either suo motu or at the instance of either of the parties, if, upon consideration of the evidence adduced by the parties, the learned trial Court finds that it is unable to effectively decide the matter without the assistance of an Commissioner/Advocate Commissioner and that such appointment is necessary for resolving the dispute…”, the court clarified further.