B.AMIT STHALEKAR,J. - (1.) THIS writ petition has been filed by the petitioners challenging the order dated 20.4.1996, passed by the 11th, Additional District Judge, Varanasi (annexure 9 to this writ petition) in civil revision no. 455 of 1995. The facts of the case, in brief, are that a civil suit no. 1221 of 1989 was filed by the plaintiffs-petitioners seeking a relief of permanent injunction restraining the respondents 2 to 6, from interfering with the possession of the plaintiffs over the plot no. 828 marked as letters Aa, Pa, Sa, Bha marked with red lines. There was also a dispute with regard to 6 feet wide pathway which also was a part of the plot no. 828, parts of which plot had been purchased by the plaintiffs-petitioners.
(2.) THE contention of the plaintiffs-petitioners was that he was in service and during his absence the defendants had occupied six feet wide road on plot no. 828 which thus prevented the plaintiffs-petitioners from opening window or door on that side of his plot. An application 76 (Ga) was filed by the plaintiff for appointment of Advocate Commissioner. By the order dated 20.10.1995, the trial court appointed an Advocate Commissioner. Being aggrieved by the said order, the defendants respondents 2 to 6 herein, filed revision no. 455 of 1995. The revisional court by the impugned order dated 20.4.1996 set aside the order dated 20.10.1995 aggrieved by which this petition has been filed. I have heard Sri C.K. Parekh, learned counsel appearing for the petitioners as well as Sri B.N. Upadhyay and Sri K.B. Srivastava for the respondents 2 to 6 and learned standing counsel for the State.
(3.) IT is pointed out by the learned counsel for the petitioners that earlier an application 52 (Ga), under order XXVI, Rule 9 C.P.C. had been filed by the respondents on 16.3.1990, for appointment of Advocate Commissioner and the said application was allowed and Advocate Commissioner was appointed. The plaintiffs-petitioners, however, filed a recall application and detailed objections on 10.4.1990, further requesting that some senior counsel may be appointed to measure the entire plot no. 828 and the land of the plaintiffs-petitioners be separated and a report be called for in respect of the six feet wide pathway. The trial court modified its earlier order and ordered accordingly. On 10.7.1990, the commissioner's report was filed against which objections were filed and thereafter issues were framed. Ultimately on 27.5.1993, the Commissioner's report was rejected. On 13.7.1994, the plaintiff-petitioners filed a fresh application for appointment of a second Advocate Commissioner for inspection of the entire area of plot no. 828 and to prepare a survey map. In civil revision no. 455 of 1995, the revisional court by the impugned order dated 20.4.1996 has set aside the order dated 20.10.1995 and has held that since in the plaint, there were no averments relating to the disputed six feet wide passage and no relief was also sought in respect of this plot, therefore, there was no good ground for appointment of Advocate Commissioner.;