THE HON'BLE SRI JUSTICE G.V. SEETHAPATHY CIVIL REVISION PETITION No.5943 OF 2009 ORDER: 1 This revision is directed against the order dated 06.11.2009 passed in I.A.No.737 of 2009 in O.S.No.780 of 2000 on the file of the III Additional Junior Civil Judge, Visakhpatnam. The said application filed by the petitioner, who is the plaintiff in the said suit, under Order 26 Rule 9 CPC for appointment of an advocate commissioner to make a local inspection of the suit schedule property and for noting down the physical features was dismissed. 2 Heard the learned counsel for the petitioner and the learned counsel for the Respondent. Perused the record. 3 The Petitioner being the plaintiff filed the said suit for declaration of his easementary rights of passage of rain, sullage and sewage water through the property of the defendant and for a permanent injunction restraining the defendant from obstructing of objecting the flow of rain and sewage water from his house to the defendant’s property. It is not disputed that the plaintiff’s house is situated in plot No.80 and the defendant purchased the plot No.73, which is adjacent to the plot of the plaintiff on its northern side. According to the plaintiff lie of the land is from south to north and the water from the south has to necessarily flow towards north and the rain and sullage water collected over the plaintiff’s plot No.80 has been flowing towards North and across the defendant’s plot No.73 to join the drain situated to the north of the defendant’s plot, for the last 34 years and the plaintiff has accordingly perfected his easementary right over the defendant’s plot for discharge of rain and sullage water. 4 The defendant categorically denies that the water from the plaintiff’s plot has been flowing through the defendant’s plot at any time and alleges that the plaintiff is now trying to create certain new rights over the defendant’s plot which are not previously in existence. The defendant further disputes that the lie of the land is from south to north. He would further contend that the municipal corporation has constructed a drain alongside the road situated on the south of plaintiff’s plot and the plaintiff has to discharge the rain and sullage water collected over his plot into the said drain situated to the south of his house. The defendant further contends that the plaintiff has no right easementary or otherwise to discharge the rain and sullage water from his plot No.80 through the defendant’s plot No.73. 5 It is not in dispute that the trial of the suit is in progress. At this stage the plaintiff filed the I.A.No.737 of 2009 for appointment of an advocate commissioner for local inspection and to note down the physical features of the plots of the plaintiff and defendant. The defendant filed the counter opposing the application on the ground that the plaintiff cannot be permitted to gather evidence under the guise of local inspection by the advocate commissioner. The learned Junior Civil Judge by his impugned order dismissed the said application observing that the petition is filed after completion of plaintiff’s side evidence and only with a view to gather additional evidence. 6 As seen from the plaint the plaintiff has made a necessary averment in the plaint regarding the levels of the plot and the lie of the land and further alleged that the road to the south of the plaintiff’s plot is 4 feet higher and the defendant’s plot is much lower in level and the water from the plaintiff’s plot has to necessarily flow through the defendant’s plot towards north to join the drain on the further north. In the written statement, the defendant categorically denied the same and contended that the plaintiff has concealed the actual topography of the area and tried to mislead the court and is now trying to create certain new rights over the defendant’s plot. 7 The question as to whether or not the plaintiff’s plot is at a further higher level and the lie of the land is from south to north and the water has to necessarily flow from south to north and whether or not there is any drainage constructed by the municipal corporation to the south of the plaintiff’s plot alongside the road are all matters that are to be noted by conducting physical verification of the property. The appointment of an advocate commissioner in a matter like the present one where the topography stated by the plaintiff is disputed by the defendant would certainly assist the court in arriving at a just decision in the matter inasmuch as the advocate commissioner would be able to present a correct picture of topographical features before the court. The appointment of an advocate commissioner to make a local inspection and to note down the topographical features would certainly help the court to consider the merits of the contentions of both the parties and appreciating their contentions in a better way before arriving at a proper decision. In any circumstances it cannot be said that the appointment of an advocate commissioner sought by the plaintiff is only with a view to gather additional evidence. If an advocate commissioner is appointed, both parties will be at liberty to serve work memos on the advocate commissioner so that all the necessary and relevant topographical features together with the necessary measurements can be bought on record for appreciation by the trial court. Under these circumstances of the case and in view of the contentions raised by both parties pertaining to the topography of the area, it is considered that appointment of advocate commissioner sought by the plaintiff can be permitted as it would assist the court for arriving at a just and proper decision in the matter. 8 In D. Sambasiva Rao Chowdary Vs. R. Kamashastry and others[1] relied on by the learned counsel for the petitioner this court held that court cannot appoint advocate commissioner for local inspection if the same enables the parties to the suit to collect evidence, but where the court finds local investigation is necessary for the purpose of obtaining evidence which from its peculiar nature can only be had on the spot, it can direct such local investigation. In the present case also having regard to the facts and circumstances of the case local inspection by an advocate commissioner is certainly required for better appreciation of the contentions of the parties especially in view of the dispute regarding the topography. 9 Accordingly this revision is allowed, the impugned order dismissing the application is set aside. The trial court is herby directed to appoint an advocate commissioner to make a local inspection of the suit property and note down the topographical features thereof by duly answering the work memos to be furnished by both parties and file his report along with plan within the period to be fixed by the trial court. The trial court shall fix appropriate remuneration to the advocate commissioner. Having regard to the fact that the suit is of the year 2000 the trial court is further directed to expedite the completion of the trial and dispose of the suit at an early date, preferably, within a period of six months from the date of receipt of a copy of this order. No costs. ---------------------------- G.V. SEETHAPTHY, J. 06.06.2011 Kvsn [1] 2004 (4) ALD 858