IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE TWENTIETH (20TH) DAY OF OCTOBER TWO THOUSAND AND NINE Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.3926 of 2009 Between: Imandi Venkataswamy … Petitioner/Plaintiff And: Pakalapati Padmanabharaju & another … Respondents/defendants HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.3926 of 2009 ORDER: This revision petition is directed against the order dated 17.07.2009 in IA No.71 of 2009 in OS No.602 of 2004 on the file of the Additional Junior Civil Judge, Vizianagaram, wherein the application filed by the petitioner herein/plaintiff under Order XXVI Rule 9 and 12(2) CPC for appointment of Commissioner to make local investigation was dismissed. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the record. 3. The petitioner herein filed suit against the respondents for declaration that he is the absolute owner of the plaint schedule property shown as ABCDEFGH in the plaint plan and for consequential relief of mandatory injunction directing the defendants to remove the foundation raised by them in DEFGHI red marked portion of the plaint plan and also for permanent injunction restraining the defendants from interfering with the plaintiff’s possession and enjoyment of ABCDIH green marked portion in the plaint plan. 4. The defendants filed written statement opposing the suit claim. It is stated that the trial is in progress. 5. It is not disputed that earlier the plaintiff filed an application in IA No.2261 of 2005 for appointment of Advocate Commissioner for local investigation and the said application was allowed by the trial Court and the Advocate Commissioner was appointed and he filed report. As seen from the copy of the said report, the learned Commissioner executed the warrant in the presence of both parties and their counsel and the Mandal Surveyor and no work memo was filed by either of the parties. In the report, the learned Commissioner stated that as per the directions of the warrant, he executed the same with reference to the sale deeds dated 20.01.1986 and 29.01.1986 of the plaintiff and the Surveyor verified the survey records and ascertained that the suit property is situated in Sy.No.189/1 and the entire extent of the said Sy.No.189/1 is ‘Gram Kantham’ comprising Ac.22.60 cents. Learned Commissioner further stated in his report that it was not possible to measure and localize the suit property from out of the extent of Ac.22.60 cents, as there was no survey stones and the entire land is ‘grama kantham’. The plaintiff however filed objections to the said report, but did not however take any further steps. Having slept over the matter for three years, the plaintiff has again come forward with the present application i.e., IA No.71 of 2009 seeking the same relief of appointment of another Advocate Commissioner for the same purpose of localization of the suit site while the trial of the suit was in progress. The learned Junior Civil Judge dismissed the said application in view of the Commissioner’s report filed by the earlier Commissioner and also observing that the present petition is filed only to protract the proceedings. 6. Learned counsel for the petitioner would submit that as the dispute relates to the boundary, the same has to be resolved by conducting survey and the refusal for appointment of Commissioner on the ground that the earlier application for the same relief was dismissed, is not proper. In that connection, he relied upon a decision of the High Court of Karnataka in ‘Lakshidevamma vs. K.Chinna Reddy[1]’. In the above case, petition was dismissed on the ground of res judicata. In the present case, the petition is dismissed not on the ground of res judicata, but on the ground that the earlier Commissioner has already filed a report stating that it is not possible to localize the suit site, which is only 185 sq. yards out of Ac.22.60 cents. The decision cited by the learned counsel for the petitioner is therefore, not applicable to the facts of the present case. 7. Learned counsel for the petitioner would further submit that the application for appointment of a Commissioner cannot be dismissed on the ground that it was belated. In that connection, he relied upon a decision in ‘Vishnudas Manga Bhavani vs. V. Bhaskar[2]’ wherein this Court held that ‘the Commissioner can be appointed even after recording evidence on both sides if circumstances of case warrant such appointment’. In the above case it was further observed that ‘an application for such appointment is belated or not depends on facts of each case. Verification of ground position arose because of denial by defendants’ witnesses of certain facts in the course of evidence’. It was therefore held that the application filed for appointment of the Commissioner while trial was in progress cannot be held to be belated. The situation in the present case is different. In the present case, already an application was filed for appointment of Advocate Commissioner in IA No.2261 of 2005 and the same was allowed and warrant was duly executed by the learned Commissioner with the help of the Mandal Surveyor, expressing his inability to localize the suit site from out of the huge extent of Ac.22.60 cents, that too in the absence of boundary stones and when the entire site is ‘grama kantham’. The plaintiff not having taken any steps subsequently and having kept quiet for over three years, the present application filed while the trial is in progress is certainly belated and is intended to further protract the proceedings. The plaintiff having filed the suit for declaration of title has to necessarily establish his claim by adducing necessary evidence and cannot be permitted to gather the evidence in support of his case, seeking to identity the suit site with the aid of the Advocate Commissioner. 8. Having regard to the facts and circumstances of the case, the dismissal of the present application for appointment of Commissioner in the light of the report filed by the Commissioner earlier and also on the ground of delay, does not call for any interference by this Court in exercise of the revisional jurisdiction. 9. In the result, the civil revision petition is dismissed. No order as to costs. _______________________ G.V.SEETHAPATHY, J Date: 20.10.2009 bss [1] 2001 AIHC 4610 [2] 1993(2) ALT 589