THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.327 of 2009 Dated:- 03rd March, 2011 Between:- Meedivemula Kuruva Rama Maddaiah …Petitioner AND The State of A.P., rep by The District Collector, Kurnool and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.327 of 2009 ORDER:- This revision is directed against the order dated 25.11.2008 passed in I.A.No.211 of 2008 in A.S.No.152 of 2005 by the Special Judge for Trial of cases under SCs & STs (PoA) Act – cum – VI Additional District Judge, Kurnool (for short, ‘the Court below’) whereby and whereunder, the petition filed by the respondents herein for sending the records again to the trial Court for getting the measurements noted by an Advocate Commissioner with the assistance of the Mandal Surveyor has been allowed. 2. Heard the learned counsel for the petitioner. No representation for the respondents. 3. The brief facts of the case are as follows:- The petitioner herein is the plaintiff and the respondents herein are the defendants in Original Suit being O.S.No.1056 of 2003 on the file of the II Additional Junior Civil Judge, Kurnool, (for short, ‘the trial Court’). He filed an application against the respondents’ herein seeking mandatory injunction directing the defendants to demolish the two pillars in the rear wall of the bus shelter shown in B.C.Wall in the house plot of the plaintiff as shown in Advocate Commissioner’s plan in between IH and HG. On such application of the petitioner being I.A.No.1096 of 2003, an Advocate Commissioner was appointed by the trial Court. According to the learned counsel for the petitioner, the Advocate Commissioner so appointed, after giving notices to both the counsel on record, visited the suit schedule property, taken measurements in the presence of both the counsel and prepared a rough sketch and submitted his report into the Court. 4. Before the trial Court, on behalf of the petitioner, he himself was examined as P.W.1 and Exs.A.1 and A.2 were marked. On behalf of the respondents, D.W.1 – Assistant Executive Engineer, Panchayat Raj Department, was examined and Exs.C.1 and C.2 were marked. 5. The trial Court, on appreciation of entire evidence on record, came to the conclusion that the construction made by the defendants, i.e., 2 pillars of the western wall of the bus shelter reveal the encroachment of the respondents over the plaintiff’s plot and accordingly decreed the suit by granting mandatory injunction directing the respondents herein to demolish the two pillars on the rear wall of the bus shelter that are shown in the BC wall in the house plot of the plaintiff as shown in the plaint plan. 6. Aggrieved by the same, the respondents herein filed an appeal which was made over the Court below. During the pendency of the appeal, the respondents herein filed the impugned I.A. praying to send the records to the trial Court and for getting the suit site measured by an Advocate Commissioner with the assistance of Mandal Surveyor, mainly on the ground that at the time of taking earlier measurements of the suit site, the Mandal Surveyor was not present. The Court below, by impugned order, allowed the application, aggrieved by which, present revision has been filed. 7. It is not in dispute that the trial Court appointed an Advocate Commissioner to measure the plaint plan plot. It appears that the learned Judge of the Court below directed the trial Court Judge to appoint an Advocate Commissioner for taking measurements of the plaint plan plot with the assistance of the Mandal Surveyor. It also appears that on such direction by the Court below, the trial Court Judge has entrusted the matter to the same Advocate Commissioner who was appointed earlier and the said Advocate Commissioner returned the warrants stating that he had executed the warrant in the year 2003 and as such, it is not possible for him to execute the warrant once again. Then, the respondents herein filed the impugned I.A. seeking to appoint fresh Advocate Commissioner and to measure the suit schedule plot with the assistance of the Mandal Surveyor. 8. The only point that arises for consideration in this revision is whether the impugned order is sustainable. 9. As seen from the contents of the report submitted by the Advocate Commissioner appointed by the trial Court to the Court below in I.A.No.1096 of 2003, it appears that the said Advocate Commissioner had issued notices to both the counsel on record and his report reveals that the counsel for the petitioner herein and the third respondent herein i.e., the Mandal Engineer were present at the time of taking measurements. Admittedly, the Advocate Commissioner has filed the report along with the rough plan giving all the measurements. Thus, the respondents herein ought to have filed the work-memo requesting the Advocate Commissioner to take the help of Mandal Surveyor. Nothing prevented the respondents to utilize the services of the Mandal Surveyor in measuring the suit schedule property. Moreover, the respondents were not diligent when the matter was pending before the trial Court. If at all the respondents were aggrieved by the report filed by the earlier Advocate Commissioner, they ought to have filed objections. The main submission of the learned counsel for the petitioner is that unless the earlier report of the Advocate Commissioner is set aside for valid reasons, no fresh Advocate commissioner can be appointed for the same purpose. As rightly submitted by the learned counsel, when an Advocate Commissioner has been appointed and he filed his report into the Court after completing all the formalities and when no objections have been filed by the other side with regard to the report of such Advocate Commissioner and when such report is not set aside, on the same facts, the respondents again cannot seek for appointment of another Advocate Commissioner. In view of the above, the impugned order cannot sustain in the eyes of law and is liable to be set aside. 10. In the result, the Civil Revision Petition is allowed by setting aside the impugned order. There shall be no order as to costs. __________________________ Justice B.Chandra Kumar 03rd March, 2011 Bvv