Advocate Commissioner Cannot Be Appointed to Locate Land Without Prima Facie Title or Possession: Telangana High Court

"Identification of Land Through Advocate Commissioner Without Establishing Possession or Title Is Purely Evidentiary Fishing" – In a crucial verdict clarifying the legal boundaries of judicial discretion under Order 26 Rule 9 CPC, the Telangana High Court quash the appointment of an Advocate Commissioner ordered by the trial court to "identify" land claimed under a sada bainama. The High Court ruled that when a plaintiff fails to establish either prima facie title or possession, the appointment of a Commissioner to locate the land amounts to a misuse of process and is not legally sustainable.

The matter arose in Sri Reddyshetty Srihari and Another v. Sri Surineni Chakradhar Rao, where the respondent-plaintiff claimed possession over Ac.0-30 guntas of agricultural land in Survey No.125/E3, Gangapur Village, based on an unregistered sale deed from 1998—a document lacking boundaries, filed only during revision proceedings, and allegedly executed when the plaintiff was a minor. The trial court, while allowing the plaintiff’s plea for the appointment of an Advocate Commissioner, failed to consider the glaring inconsistencies in his claim and the earlier rejection of his injunction plea.

Justice B.R. Madhusudhan Rao, invoking supervisory powers under Article 227 of the Constitution, held that appointing a Commissioner in such circumstances was premature, contrary to law, and a perverse exercise of jurisdiction.

“Trial Court Ignored That Plaintiff’s Own Title and Possession Were Rejected Earlier – Commissioner Can’t Be Used to Fill Evidentiary Gaps”

The High Court noted that the plaintiff had earlier sought ad interim injunction through IA No.252 of 2021, which was rejected by the trial court, and the order was upheld successively by the Appellate Court and the High Court in CRP No.2136 of 2022. Those proceedings found that the plaintiff had failed to show any proof of physical possession or a valid title to the suit land.

Quoting its earlier order, the High Court recalled:

“The petitioner is relying on a sada sale deed executed on 28.03.1998, but the said deed was regularised only after 12 years, contains no boundary details, and is insufficient to establish title or possession. The suit schedule land’s existence on ground is itself doubtful and can be resolved only at trial.”

Yet, despite this binding observation, the trial court went ahead and permitted the appointment of an Advocate Commissioner to identify the land—a move the High Court condemned as an attempt to “fish for evidence in favour of one party.”

“Advocate Commissioner Cannot Be a Substitute for Title—Law Demands Proof, Not Discovery”

The High Court drew a critical legal distinction between identification and demarcation of land, emphasizing that courts must resist attempts to conflate the two to enable litigants to establish claims lacking foundational evidence.

The judgment observed: “Demarcation is the physical process of marking boundaries based on established title. Identification is a broader process that classifies land based on location or characteristics. The prayer in this case was for identification—not demarcation—and thus amounts to collection of evidence, which is impermissible under Order 26 Rule 9 CPC.”

Justice Madhusudhan Rao stressed that such relief cannot be granted “at the threshold stage when even the plaintiff’s foundational claim remains unproven.”

The Court cited its earlier decisions and binding precedents including A. Gopal Reddy v. Subramanyam Reddy and Dammalapari Satyanarayana v. DVR Raju, which consistently held that appointment of a Commissioner cannot be used to compensate for lack of substantive evidence.

“Contradictions in Plaintiff’s Own Records Undermine Any Claim of Title or Possession”

Beyond procedural impropriety, the High Court also underlined material contradictions in the plaintiff’s documents. The sada sale deed on which the claim was based contained no boundaries, was executed when the plaintiff was 12 years old, and was filed belatedly. Even the revenue records produced by the plaintiff gave conflicting grounds for title, with some showing purchase and others inheritance.

The Court remarked: “The respondent is blowing hot and cold—at one breath claiming the land by purchase under sada bainama, and in the next relying on revenue records showing inheritance. The learned trial court failed to address this contradiction and misread the prior observations of this Court.”

The Court also noted that the plaintiff failed to explain how the survey number changed from 125 to 125/E3, or what the total extent of land in Sy.No.125 was. In such a scenario, seeking identification through an Advocate Commissioner was held to be legally unjustifiable.

“Article 227 Powers Must Be Invoked Where Trial Court Exercises Jurisdiction in a Perversely Mechanical Manner”

Applying the test laid down in K. Valarmathi v. Kumaresan, the High Court held that the trial court’s decision reflected a mechanical application of discretion, warranting correction under Article 227:

“The learned trial court misread the observations of the High Court in CRP No.2136 of 2022. Respondent is not entitled for appointment of Advocate Commissioner for identification of his property. The order dated 19.06.2025 is perverse and is hereby set aside.”

In concluding, the Court warned that courts must not permit procedural tools to become instruments of legal mischief. The threshold for seeking appointment of a Commissioner is not mere allegation, but a prima facie case built on credible title and possession—which the respondent utterly lacked.

The judgment reaffirms the procedural safeguard that Advocate Commissioners are not evidence-gatherers for parties whose claims are unsupported. It also serves as a cautionary precedent against early-stage judicial interventions that disturb the balance of civil trials by allowing one party to mask evidentiary infirmities through procedural shortcuts.

In a decisive statement of law and judicial discipline, Justice B.R. Madhusudhan Rao reminded trial courts that:

“The trial must test the strength of a party’s case, not provide it. Courts cannot substitute proof with process.”

Date of Decision: 15 October 2025