IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD WEDNESDAY, THE SIXTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4690 OF 2009 Between: Sarabu Venkata Subbamma …Petitioner A n d Addepalli Chenchu Rathnamma ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4690 OF 2009 ORDER: This civil revision petition is directed against the order dated 14.09.2009 in I.A.No.740 of 2002 in O.S.No.98 of 1994, on the file of the Principal Junior Civil Judge, Kovur, wherein the said application filed by the petitioner herein, the plaintiff, under Order XXVI Rule 9 CPC, seeking appointment of Commissioner to survey the suit property with the assistance of District Surveyor, was dismissed. 2. Heard the learned counsel for the petitioner/plaintiff and the learned counsel for the respondents/defendants. Perused the record. 3. The petitioner herein filed the suit for declaration that the ‘EF’ wall shown in plaint plan is the joint wall of the plaintiff and the 1st defendant and for consequential relief of permanent injunction restraining the defendants from making any construction on ‘EF’ wall and for a permanent injunction restraining the defendants and their men from putting up any pillars to the east of ‘EF’ wall without leaving 1½ feet space on the east to enable the plaintiff to discharge the eves water and to effect the repairing work. The defendants filed a written statement that the ‘EF’ wall is constructed within the site of defendants and while doing so, the defendants have left 9” space for causing repairs to the wall and the said wall is exclusive wall of the defendants. Earlier, the plaintiff filed I.A.No.396 of 2001 for appointment of Commissioner to measure the suit property with the assistance of Mandal Surveyor. The trial Court appointed Sri T.Anand Kumar, Mandal Surveyor, Butchireddypalem to conduct the survey. Though the Mandal Surveyor was required to issue prior notice to both parties, it is stated that he executed the warrant without notice to the plaintiff or her counsel and filed a report as if he measured the site on 23.02.2002. It is further stated that the Mandal Surveyor collusively sent notice to wrong address to a wrong person by name V.Rama Krishna, Advocate, Kovur, instead of sending the same in the name of Sri V.Rama Krishna Reddy, learned counsel for the plaintiff before the trial Court. In the affidavit filed in support of the application, the plaintiff alleged that the Mandal Surveyor has colluded with the defendants and sent the notice to wrong address in the name of a wrong person and filed his report for which the plaintiff filed objections. The plaintiff, therefore, sought appointment of Advocate- Commissioner to conduct the survey with the assistance of a District Surveyor. The respondent filed a counter opposing the application. The learned Junior Civil Judge, by the impugned order, dismissed the application, observing that the appointment of Mandal Surveyor in I.A.No.396 of 2001 was confirmed by this Court in the revision preferred against that order and, therefore, the question of appointing a fresh Commissioner does not arise as the Mandal Surveyor has already filed his report and the plaintiff can as well cross-examine the Mandal Surveyor based on the objections filed to the said report. 4. As seen from the impugned order, the defendant filed I.A.No.957 of 2002 for issuing summons to the Mandal Surveyor to be examined as a witness and the same was allowed. The appointment of Mandal Surveyor to measure the disputed site and file a report in I.A.No.396 of 2001 was admittedly confirmed by this Court. The Surveyor has executed the warrant and filed his report. The plaintiff alleges that no notice was issued prior to conducting the survey either to herself or to her counsel. In the counter filed by the respondent, it was stated that in the event of the Court finding that in the interest of justice a Commissioner is to be appointed the respondent has no objection for appointing any Senior Advocate to measure the site with the assistance of a District Surveyor after scrapping the first report. As the Mandal Surveyor has admittedly not executed the warrant in the presence of the plaintiff or her counsel, and the notice was issued by the Mandal Surveyor, not the plaintiffs’ counsel, but in the name of a wrong person, the direction contained in the warrant that the same shall be executed after prior notice to the parties, is not complied with. The Mandal Surveyor ought to have issued notice to the plaintiff and to her counsel and executed the warrant in their presence as directed. The plaintiff was deprived of opportunity of furnishing any work memo also to the Mandal Surveyor. The Mandal Surveyor was himself appointed as a Commissioner and he was not assisting any advocate-Commissioner. As the respondents have stated no objection for appointment of a senior Advocate as a Commissioner and survey the disputed property with the assistance of a District Surveyor, the trial Court ought to have granted the said relief. The observation of the trial Court that appointment of a fresh Commissioner may amount to setting at naught the orders of this Court, confirming the appointment of Mandal Survey, is misconceived because what was confirmed earlier by this Court was only appointment of Mandal Surveyor and when the said Surveyor has not complied with the directions contained in the warrant, the report filed by him stands vitiated. The earlier order of this Court, confirming appointment of Mandal Surveyor, does not come in the way of scrapping the report filed by the Mandal Surveyor and appointing a fresh advocate- Commissioner. 5 . In the circumstances, the impugned order is set aside and the trial Court is directed to appoint an Advocate of sufficient standing as a Commissioner to make a local inspection of the disputed suit property and take necessary measurements with the help of a senior Surveyor that may be deputed by the District Survey office and fix appropriate remuneration to the Commissioner. The warrant shall be executed after giving prior notice to and in the presence of both parties. 6. In the result, the civil revision petition is disposed of accordingly. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 6th July, 2011 Lrkm