THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE G.KRISHNA MOHAN REDDY W.P.No.15558 of 2011 ORDER: (per the Hon’ble Sri Justice V. Eswaraiah) This writ petition is filed by the applicants in L.G.C.No.53 of 2005 on the file of the Special Court under A.P.Land Grabbing (Prohibition) Act, Hyderabad (for short “the Act”), questioning the order, dated 02- 06-2010 passed in I.A.No.167 of 2010 in L.G.C.No.53 of 2005, wherein the said application filed by the petitioners herein under Order XXVI Rule 9 CPC to appoint the Director, Central Survey Office, Narayanaguda, Hyderabad, as second Commissioner to survey and demarcate the application schedule land admeasuring 2420 sq. yards as per the boundaries given in the application by correlating them with the sale deeds marked as Exs.A-1 to A-5 and also the sale deeds that were marked by the respondents under Exs.B-1 to B-20 and to submit a report with sketch, was dismissed. Earlier, the petitioners filed I.A.No.1030 of 2008 under Order XXVI Rule 9 CPC to direct the Assistant Director, Survey and Land Records, Ranga Reddy District, to localize and demarcate the application schedule land admeasuring 2420 sq. yards within the boundaries given in the application correlating them with the sale deeds marked as Exs.A-1 to A-5 and the sale deeds that were marked by the respondents as Exs.B-9 to B- 20 and to submit a report with sketch. The petitioners also filed I.A.No.1031 of 2008 to reopen the case. The Special Court by separate orders, dated 30-12-2008, dismissed I.A.No.1030 of 2008 and I.A.No.1031 of 2008 respectively. Against the order, dated 30-12-2008, passed in I.A.No.1031 of 2008, the petitioners herein filed W.P.No.579 of 2009 and against the order passed in I.A.No.1030 of 2008, the petitioners herein filed W.P.No.2892 of 2009. Both the writ petitions were heard and a Division Bench of this Court by a common order, dated 10-06-2009, allowed the writ petitions imposing costs of Rs.10,000/-. Pursuant to the said order of this Court, the Special Court vide its order, dated 13-07-2009, allowed I.A.Nos.1030 of 2008 and 1031 of 2008 respectively and accordingly, appointed the Assistant Director, Survey and Land Records, R.R.District as Commissioner to localize and demarcate the application schedule land admeasuring 2420 sq. yards. within the boundaries given in the application schedule correlating them with the sale deeds marked as Exs.A-1 to A-5 and also the sale deeds that were marked by the respondents as Exs.B-9 to B-20. Pursuant to the said warrant of commission, dated 13-07-2009, the Assistant Director, Survey and Land Records, Sanga Reddy District, filed his report, dated 04-11-2009 before the Special Court stating as follows:- “It is submitted that as per this office relevant records the Sy.No.7 admeasuring Ac.133-04 gts. Situated at Saroornagar village and mandal. The Teepan of the said survey number is not traceable, as the records are in torn condition. No such sub- division record for Sy.No.7/A, 7/B, 7/C and 7/D is available in this office. As such there is no existence of Sy.Nos.7/A, 7/B, 7/C and 7/D in the survey records of Saroornagar village and mandal. As per directions of the Hon’ble Court I have gone through the exhibit Nos.A-1 to A-5 and B-9 to B-20. It is further submitted that due to non availability of location of Sy.No.7/A in survey records it is not possible to identify the application schedule land on the ground. However, I have taken measurement of the application schedule land as identified by both the counsels. The application schedule land is identified within Sy.No.7 of Saoornagar village and mandal. The measurements taken on the ground are calculated and worked out, area comes to an extent of 3207 sq. yards. The same land is covered by existing structure on the ground. On verification of documents the total area covered by exhibit Nos.A-1 to A-5 comes to 2320 sq. yards (including the lane shown in the exhibits it comes to 2420 sq. yards). As per exhibit Nos.B-9 to B-20 the total area comes to 3267 sq. yards. The application schedule land area as per spot measurements comes to 3207 sq. yards. However, the area of application schedule land is approximately tallying to the area mentioned in Exs.B-9 to B-20. The work memos filed by the counsel for petitioners and the counsel for respondents are answered. A self explanatory sketch showing the ground position i.e., existing structure is shown in ‘PINK’ colour is submitted herewith for kind perusal of the Hon’ble Court.” It is stated that the petitioners filed objections for the said report stating that the Commissioner had not correctly measured the disputed site, but no application was filed to set aside the said survey report. The said Assistant Director was also examined as CW.1 and cross- examined by the petitioners. Thereafter, the petitioners herein filed I.A.No.167 of 2010. The said application was dismissed by the impugned order, dated 02-06-2010, on the ground that the second Commissioner could not be appointed for the same purpose without rejecting the report of the first Commissioner and without recording reasons, relying on the judgments of this Court in KUSHAL RAO VS. SHYAM RAO[1] and SEEPALLY THIRUPATHI AND ORS. Vs. REPELLI MALLIKARJUN AND ANOTHER[2]. The Special Court further observed as follows:- “We have perused the report of the Commissioner which is marked as Ex.C-1 and plan which is marked as Ex.C-2 and also the evidence of the Commissioner, who is examined as CW.1. In the cross-examination by the applicants’ counsel the CW.1 has clearly stated that he identified the application schedule property with reference to the boundaries given in the application and also exhibits Exs.A-1 to A-5 and B-9 to B-20. He further stated that he identified the application schedule property with the help of Village Map and as shown by the counsels appearing for the petitioners and the respondents. When CW.1 gave this answer in the cross- examination by the applicants’ counsel, the applicants’ counsel did not challenge that applicants’ counsel did not agree for the identification of the application schedule property made by the Commissioner, in the presence of both sides counsels. Therefore, there are absolutely no reasons to reject the report of the Commissioner which is marked as Ex.C-1 and also the plan which is marked as Ex.C-2.” Learned counsel appearing for the petitioners submits that the property of the property is in Sy.No.7/A and the property of the respondents is in Sy.No.7/C. The extent of the property of the applicants is 2420 whereas the property of the respondents as per Exs.B-9 to B-20 is 3267 sq. yards. As per the survey report, the actual extent is 3207 sq. yards in Sy.No.7/C. The Commissioner, who was appointed by the Special Court, pursuant to the order of this Court, identified the location of the application schedule property, which in fact, is being claimed by the applicants as well as the respondents. According to him, further sub-divisional records of Sy.No.7 are not available. Therefore, when there is no dispute with regards to the identity of the property as to whether it is Sy.No.7/A or in 7/C and according to the Commissioner, sub-divisional records of Sy.No.7 are not available in the Survey Department, it is for the respective parties to establish that there is a sub-division and that the land purchased by them under relevant sale deeds is situated in that particular survey number. The location of the property as such is not disputed. Therefore, we are of the opinion that there is claim for the lesser extent by the applicants and for the larger extent by the respondents. Order XXVI Rule 9 of CPC reads as follows:- “Commissions to make local investigations. – In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. Order XXVI Rule 10 CPC reads as follows:- Procedure of Commissioner.- (1) the Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (2) Report and depositions to be evidence in suit.- the report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. (3) Commissioner may be examined in person.- Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. Order XXVI Rule 10A CPC reads as follows:- 1 0 A . Commission for scientific investigation:- (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. (2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9. Order XXVI Rule 10B CPC reads as follows:- 10B. Commission for performance of a ministerial act.- (1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if , for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the Court. (2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9. Order XXVI Rule 10 CPC reads as follows:- 10C. Commission for the sale of movable property.- (1) Where, in any suit, it becomes necessary to sell any movable property which is in the custody of the Court pending the determination of the suit and which cannot be conveniently preserved, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the Court. (2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9. (3) Every such sale shall be held, as far as may be, in accordance with the procedure prescribed for the sale of movable property in execution of a decree. From the above, it is clear that the Commissioner can be appointed only for the purpose of ministerial act, but not for the purpose of gathering evidence. Therefore, the Commissioner cannot be appointed for the purpose of adjudication of disputes or for the purpose of gathering evidence, as it is the primary duty of the respective parties to prove their averments in the pleadings, which are required to be appreciated before the Court. However, in the instant case, as per the aforesaid judgments of this Court, unless the report of the first Commissioner is set aside, no second Commissioner can be appointed for the self same purpose. Therefore, we do not see any infirmity, legal or otherwise in dismissing I.A.No.167 of 2010 in L.G.C.No.53 of 2005. Hence, the writ petition is devoid of merits and the same is liable to be dismissed. Accordingly, the writ petition is dismissed with costs. ________________ V.ESWARAIAH, J ____________________________ G.KRISHNA MOHAN REDDY, J Date : 30-08-2011 Prv [1] 1997 (1) ALT 93 [2] 2006 (3) ALD 635