THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.4997 OF 2006 DATED 8TH JULY, 2010 BETWEEN Peddi Rangarao and Others … Petitioners And Muthavarapu Singaiah and Another … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.4997 OF 2006 ORDER: Petitioners 1 and 2 herein are the respondents in A.S.No.97 of 2001 on the file of the Senior Civil Judge, Bapatla. Petitioner 2 having died pendente lite petitioners 3 to 5 have come on record as his legal representatives. The Appeal, A.S.No.97 of 2001, arose out of the Judgment and Decree in O.S.No.52 of 1996 on the file of the Junior Civil Judge, Ponnur. The said suit was instituted by the petitioners 1 and 2 herein seeking a mandatory injunction to the defendants in the suit to remove the earth on their land and for a consequential perpetual injunction. The said suit was decreed on 15.10.2001. Aggrieved thereby, the respondents herein filed the appeal, A.S.No.97 of 2001. During the pendency of the suit an Advocate Commissioner was appointed by the trial Court to note down the physical features and measurements of the suit land and two reports are said to have been submitted by the Advocate Commissioner in this regard. The learned counsel for the petitioners/plaintiffs concedes that the said reports were filed soon after the institution of the suit in the year 1996. The case of the petitioners/plaintiffs was that the defendants/respondents herein had carted earth on to their land in such manner that it had the effect of hindering the flow of water affecting their interest adversely. In the appeal, I.A.No.454 of 2005 was filed by the respondents herein under Order XXVI, Rules 9 and 10-A of the Code of Civil Procedure seeking appointment of a technically qualified Commissioner to visit the suit land and note the physical features. As per the averments made in the affidavit filed in support of this application, the levels of the land as they were in 1996 which were recorded by the Commissioner appointed in the suit no longer existed on the ground as soil erosion had occurred due to rain and floods over the years. The appellants therefore contended that there was no longer any necessity for removal of the earth as mandated by the trial Court and that the same would, in fact, result in lowering of their land levels resulting in their inundation. The lower appellate Court, upon consideration of the petition and the counter, by order dated 29.06.2006 appointed an Advocate Commissioner to note the physical features of the lands of both the parties along with contour levels with the assistance of a qualified Mandal Surveyor. Aggrieved by this order, the respondents in the appeal/plaintiffs in the suit filed this revision petition. Sri N.Sree Rama Murthy, learned counsel for the petitioners, relying on case law, submitted that once the reports of the Commissioner appointed during the pendency of the suit were on record, appointment of a second Commissioner and calling for a fresh report did not arise unless the Court came to the finding that the earlier reports were deficient. On facts, the learned counsel submitted that the application filed by the respondents herein was bereft of details and without proper reasons, i.e., when the floods occurred and how the soil erosion took place. Countering this argument, it is stated by the learned counsel for the respondents that the foundation for the suit was the raising of the levels of the respondents’ land by carting of earth which allegedly obstructed the flow of water. It is stated that the only material available on record to substantiate this were the reports submitted by the Advocate Commissioner on the basis of the information gathered soon after the institution of the suit. However, owing to passage of time, natural influences and erosion of soil, the levels of their land had undergone a sea change whereby the cause of action no longer survived. It is stated that if any further lowering of levels in their land was undertaken, the same would result in their land being inundated. Sri N.Sree Rama Murthy, learned counsel for the petitioners, placed reliance on R.VIJAYUDU v. N.RAMACHANDRA REDDY[1] wherein a learned Judge of this Court held that mere averments by the party that there were discrepancies in the Commissioner’s report would not be sufficient for appointment of a second Commissioner. It was observed that unless a finding is recorded by the Court with regard to the reasons for dissatisfaction with the first Commissioner’s report, appointment of a second Commissioner was not valid. I n SEEPALLY THIRUPATHI AND OTHERS v. REPELLI MALLIKARJUN AND ANOTHER[2], a learned Judge of this Court stated: “10. It is pertinent to note that merely because scientific enquiry had been referred to, it cannot be said that under the guise of those provisions, when already a report of commissioner is available on record, the learned Judge without recording any reasons, expressing either the deficiency or otherwise relating to the said report, cannot appoint yet another Commissioner. Hence, in this view of the matter, the learned Judge had not committed any illegality whatsoever in dismissing the application.” I n KSHATRI AMMINIBAI v. BEDESI SURYANARAYANA SINGH (DIED) AND OTHERS[3], a learned Judge of this Court held that appointment of a Commissioner at the appellate stage when the same was not done during the suit proceedings due to inadvertence, was impermissible. Allegation in that case was that the defendants in the suit had made further encroachments which was sought to be ascertained by way of appointment of a Commissioner. The learned Judge held that the same would constitute a different cause of action and could not be raised in the appeal. FATEH MOHAMMED v. FAREEDA BANU[4] is relied upon to support the proposition that an appeal is considered to be the continuation of the suit. I am in respectful agreement with the ratios laid down in the aforestated Judgments. However, each case must turn upon its own facts. In the present case, the appointment of the Commissioner at the appellate stage is not sought on the ground that there were any deficiencies or discrepancies in the reports submitted by the Commissioner immediately after the institution of the suit. The cause of action turns upon the levels of the earth in the respondents’ land obstructing the flow of water and it is the plea of the respondents that, owing to the passage of time and the ravages of nature, the soil erosion which had taken place brought down the levels of their land. That being so, the Judgments in R.VIJAYUDU, SEEPALLY THIRUPATHI and KSHATRI AMMINIBAI have no bearing on the facts of the present case. The necessity for the appointment of a Commissioner in the present case is occasioned only because of the passage of time which may have brought about a change in the physical features of the respondents’ lands which has a direct bearing on the case. The gathering of this information by the lower appellate Court with the use of a qualified Surveyor would facilitate the adjudication and would not have any adverse effect on the interests of the petitioners. The order of the lower appellate Court directing the appointment of the second Commissioner to note the physical features of the lands of both the parties along with contour levels, duly taking the assistance of a qualified Mandal Surveyor, therefore does not call for any interference by this Court. The Civil Revision Petition is accordingly dismissed. No order as to costs. ____________________ SANJAY KUMAR, J. 8TH JULY, 2010 PGS/VGSR [1] 2004 (6) ALT 411 [2] 2006 (3) ALD 635 [3] 2006 (5) ALD (NOC 96) [4] AIR 2010 AP 7