THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.6123 OF 2010 DATED JUNE, 2011 BETWEEN P.Murali Rao and another …Petitioners And The Kadapa District Elementary & Secondary Teachers House Building Society, Rep. by its President Y.Rama Krishna Reddy. …Respondent THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.6123 OF 2010 O R D E R The plaintiffs in O.S.No.57 of 2008 on the file of the learned IV Additional Junior Civil Judge, Kadapa, are before this Court by way of the present revision aggrieved by the order dated 12.07.2010 passed by the Court below in I.A.No.393 of 2010 in O.S.No.57 of 2008. The said I.A. was filed by the defendant society under Order XXVI, Rule 9 read with Section 151 of the Code of Civil Procedure (CPC) seeking appointment of an Advocate Commissioner to locate, measure and fix the boundaries of the suit schedule land with the assistance of a Mandal Surveyor. By the order under challenge, the Court below allowed the application. This Court, while ordering notice before admission in the Civil Revision Petition, stated that any proceedings taken pursuant to the impugned order shall be subject to further orders in this revision. It is however stated by the learned counsel that owing to the pendency of the revision no steps were taken by the Commissioner for carrying out the commission as directed by the Court below. The petitioners/plaintiffs had earlier filed an application in I.A.No.649 of 2009 in O.S.No.57 of 2008 seeking appointment of an Advocate Commissioner to note down the physical features of the suit land. Pursuant thereto, the Commissioner so appointed filed his report on 10.12.2009. However, as no notice was given to the defendant society by the Commissioner before undertaking the survey, it moved the subsequent application in I.A.No.393 of 2010 seeking appointment of a Commissioner afresh or in the alternative, entrustment of the commission to the same Commissioner for locating, measuring and fixing the boundaries of the suit schedule land with the help of the Mandal Surveyor. Taking note of the fact that an Advocate Commissioner had been appointed earlier at the instance of the plaintiffs, the Court below re-entrusted the commission to the same Commissioner for carrying out the survey as sought by the defendant society with the help of the Mandal Surveyor. Expenses for the same were directed to be borne by the defendant society. Sri V.R.Reddy Kovvuri, learned counsel appearing for the petitioners/plaintiffs, contended that the impugned order is unsustainable as it goes beyond the permissible purposes for which an Advocate Commissioner can be appointed. It is his case that the defendant society is seeking to gather evidence through the Advocate Commissioner which cannot be permitted. He placed reliance on the Judgment of this Court in ARREDLA RAM REDDY V/s. ARREDLA ALIVELAMMA[1]. Sri M.S.P.Kama Raju, learned counsel for the respondent/ defendant society, on the other hand, submitted that the order passed by the Court below did not brook interference as the Advocate Commissioner had, in fact, been appointed in the first instance at the behest of the petitioners/plaintiffs themselves and therefore they could have no objection to the re-entrustment of the commission to the same Commissioner as his client had failed to participate in the earlier survey due to lack of notice. The suit, O.S.No.57 of 2008, was filed by the petitioners/ plaintiffs for a permanent injunction restraining the defendant society and its men from interfering with their possession and enjoyment over the suit schedule land. It was their case that the suit schedule land admeasuring Ac.5.00 cents situated in Paimaishi No.135 of Pabbapuram Village, C.K.Dinne Mandal, Kadapa District, belonged to them and that the defendant society was attempting to remove the fencing erected by them on the suit schedule land. In its written statement, the defendant society stated that it had purchased various extents of land in Pabbapuram Village but as there was no access to these lands it had submitted representations to the authorities for formation of a road. Accordingly, a ring road had been laid near the lands, connecting Rayachoty – Kurnool road bypassing Kadapa Town. The defendant society stated that the land covered in the suit did not belong to it. However, the plaintiffs were alleged to be attempting to encroach into its land. The defendant society therefore stated in para 8 of the written statement that the plaintiffs were at liberty to get a surveyor appointed for measuring their land and erecting fencing. The particulars of the land purchased by the defendant society in Pabbapuram Village were also furnished in the written statement indicating clearly that no land in Paimaishi No.135 of the Village was purchased by it. In the light of the dispute between the parties as reflected by the aforestated pleadings, the Court below was correct in holding that the measurement of the suit land and fixing of the boundaries thereon by the Mandal Surveyor would aid it in determining the real question in controversy. It may be noticed that in ARREDLA RAM REDDY this Court pointed out that appointment of Commissioners under Order XXVI CPC is not confined to any particular circumstances and depending on the necessity of a suit, a Commissioner can be appointed even to note down the physical features. This Court observed further that this would however depend upon the nature of the relief claimed in the suit. Therefore, there is no hard and fast rule as to in what circumstances a Commissioner can be appointed under Order XXVI CPC and as to what should be the extent of the commission entrusted to him. In the present case, the controversy appears to be centered around the identification of the suit land in as much as the defendant society clearly admits that it has no interest in the suit schedule land of Ac.5.00 guntas situated in Paimaishi No.135 of the Village claimed by the petitioners/plaintiffs and that its land is separate and distinct. The assistance of a Mandal Surveyor in ascertaining the location and boundaries of the suit schedule land would therefore be vital in adjudicating the issue. This is therefore not a case where it can be said that an attempt is being made to gather evidence. The order of the Court below does not warrant interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution. The Civil Revision Petition is accordingly dismissed. No order as to costs. ---------------------------- SANJAY KUMAR, J. _________ JUNE, 2011. PGS [1] 2004 (5) ALD 388