IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.5604 of 2009 Between: Mohd. Shabbir Hussain and another through G.P.A. Holder Mohd. Saber Hussain .. Petitioners AND Mohd. Mahmood Hussain @ Saheb Patel .. Respondent ORDER: The dismissal of I.A.No.311 of 2009 in O.S.No.127 of 2005 on the file of the Junior Civil Judge, Zaheerabad, by the order dated 6-11-2009 led the unsuccessful plaintiffs to approach this Court with this revision petition. The plaintiffs filed the petition for appointment of Commissioner to make local inspection and to survey, demarcate and fix the boundaries of the suit A and B schedule properties with the assistance of Mandal Surveyor as per the revenue and settlement record. The defendant resisted the request on the ground that the suit was filed for permanent injunction and for demarcation of the suit A and B schedule properties by fixing the boundary stones and when the matter is coming up for further evidence after PWs.1 and 2 were examined, the petition was filed to protract the proceedings. The trial Court in the impugned order noted that I.A.No.108 of 2007 filed by the defendant earlier to have an advocate commissioner appointed to note the physical features and boundaries of the suit land was dismissed by an order dated 01-05-2007 and this petition for the same relief is, hence, not maintainable. The trial Court also noted that the defendant is yet to adduce evidence in the suit and the plaintiffs are yet to close their evidence and therefore, this petition amounting to final adjudication of the suit claim was premature. Accordingly, the trial Court dismissed the petition. The plaintiffs contended in this revision petition that the lands of the plaintiffs in plaint A and B schedule properties are contiguous, while the land of the respondent, who is their cousin brother, is to the north of the land of the petitioners. The petitioners were compelled to file the suit due to the illegal interference with their lands by the respondent and the very nature of controversy involved in the suit would make it necessary to have the lands surveyed and demarcated as per the public record. The petitioners also contended that the respondent himself filed I.A.No.108 of 2007 for noting the boundaries of the suit land and therefore, they desired that the impugned order be reversed. Sri Mohd. Ghulam Hussain, learned counsel for the revision petitioners and Sri C. Pratap Reddy, learned counsel for the respondent are heard. It is stated by Sri C. Pratap Reddy, learned counsel for the respondent that in O.S.No.202 of 2008 on the file of the Senior Civil Judge, Zaheerabad between the same parties, an advocate commissioner was appointed at the instance of the respondent herein to note the physical features of the disputed property and accordingly that Commissioner executed his warrant of commission and filed his report into that Court. It is also not disputed that the respondent has filed a similar application even in this suit in which he failed in I.A.No.108 of 2007 and therefore, the necessity to have an advocate commissioner to note the physical features and boundaries of the suit land for an effective and complete adjudication of the questions in controversy was also recognized by the respondent himself. Sri Ghulam Hussain, learned counsel for the revision petitioners also referred to E. Achuthan Nair v. P. Narayanan Nair and another[1], in which the maintainability of a suit for specifying and demarcating the property in dispute was held to be maintainable. The Apex Court pointed out that the English Law on the subject has no application to Indian conditions and whenever there is a dispute between two parties as regards the location of a boundary separating their neighbouring properties, a suit will lie at the instance of the demanding party, who seeks cooperation in fixing such boundary. The Apex Court referred to the geometrical shape of the plots in dispute leading to the necessity of deciding such a civil dispute for which it cannot be said that there was no cause of action of a civil nature to approach the civil Court and to get the relief, for which there is no express or implied bar under any law. The present suit also is one not only for a permanent injunction but also for a decree for demarcation of the suit schedule A and B properties by fixing the boundary stones through the Court by appointing a Court Commissioner, and therefore, it will be eminently justified to have an advocate commissioner during the trial of the suit to have the help of the impartial report of such commissioner for the Court for appropriate determination of the questions in controversy between the parties. The same cannot amount to any final adjudication of the suit relief itself as opined by the trial Court. As any report of such commissioner will be only a piece of evidence and a circumstance on record, it will be taken into account by the trial Court for determination of the dispute on merits in accordance with law. Sri C. Pratap Reddy, learned counsel for the respondent, while recognizing the need to have physical features and boundaries observed and reported for a satisfactory adjudication of the dispute between the parties, only desired that the entire survey number be surveyed and demarcated so as to provide satisfactory independent material for the Court to decide the truth or otherwise of the respective claims of the parties and the request is justified. Learned counsel for the petitioners expressed his readiness to bear the cost of the commission irrespective of the result of the suit as it is indispensible for the proper determination of the suit on merits. Under the circumstances, the mere fact that I.A.No.108 of 2007 in O.S.No.127 of 2005 on the file of the Junior Civil Judge, Zaheerabad, to have the physical features and boundaries noted was dismissed does not disable the Court from considering the appointment of an advocate commissioner as requested by the plaintiffs and there is no principle of res judicata or constructive res judicata involved in considering such request as the earlier order did not decide the rights of the parties in any manner conclusively or otherwise. The impugned order has to be, therefore, reversed and the petition has to be ordered accordingly. In the result, the order in I.A.No.311 of 2009 in O.S.No.127 of 2005 on the file of Junior Civil Judge, Zaheerabad, dated 6-11- 2009 is set aside and the said I.A.No.311 of 2009 in O.S.No.127 of 2005 is ordered directing the appointment of an advocate commissioner for the purpose of noting the physical features of the suit schedule lands and the other lands claimed by the parties and to survey and demarcate the properties respectively claimed by the plaintiffs and the defendant with the assistance of the Mandal Surveyor as per the revenue and settlement record. The trial Court shall name such commissioner and direct both parties to appear before the Commissioner and also fix the remuneration payable to the commissioner and also direct the commissioner to answer any work memos filed before him by the parties. The plaintiffs shall bear the cost of such commission irrespective of the result of the suit. The Civil Revision Petition is ordered accordingly. No costs. _____________________ G. BHAVANI PRASAD, J Date: 19-02-2010 Ksn [1] AIR 1987 SC 2137