THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No.2898 OF 2009 Dated:23.10.2009 Between: Mohd. Shabbir Hussain and others .. Petitioners AND Mohd. Mohmood Hussain and others .. Respondents ORDER: The respondents 1 to 3 in I.A.No.263 of 2009 in O.S.No.202 of 2008 on the file of the Senior Civil Judge, Zaheerabad, Medak District filed this Revision Petition aggrieved by the appointment of a Commissioner by the order dated 29.06.2009. The plaintiff filed the petition for appointment of an advocate Commissioner to note the physical features of the suit schedule land contending that he dug a well and installed a bore well in the suit land, with the help of which, he was irrigating sugar cane and other cultivated crops in the land. He also claimed about the existence of a water channel since more than thirty years on the southern edge of his land used for irrigation, and contended that part of the said canal was damaged and his P.V.C. pipe line was also damaged. He further claimed that a thorn fencing and a fencing with stone pillars in between his land and the land of the revision petitioners was also damaged and removed under the guise of an order of injunction in I.A.No.569 of 2005 in O.S.No.127 of 2005. He also contended that in the written statement of the revision petitioners, they have referred to the physical features, which were alleged to be in existence in the land in the possession of the revision petitioners. The revision petitioners resisted the claim for appointment of a Commissioner alleging that the petition was filed to note the physical features of the subject matter of O.S.No.127 of 2005 on the file of the Junior Civil Judge, Zaheerabad, which Court had also dismissed a similar petition, as an attempt to collect the evidence, which therefore operates as res judicata. The trial Court, in the impugned order, observed that when the suit is coming for trial, appointment of a Commissioner to note the physical features will not become an effort for collecting the evidence. The trial Court felt that the interests of the revision petitioners are no way effected by noting the physical features by directing the appointment of a Commissioner. The revision petitioners, challenging the said order, contended that the revision petitioners themselves filed O.S.No.127 of 2005 in respect of their land and obtained an interim injunction in I.A.No.569 of 2005, as a counter blast to which the first respondent filed the present suit. The revision petitioners contended that no Commissioner can be appointed before the commencement of trial and the purpose for which the appointment of Commissioner is sought is vague and misleading. In fact, the revision petitioners sought for the relief of demarcation and fixation of boundaries in their suit and hence they desired the order to be reversed. Sri Mohd. Ghulam Hussain, learned counsel for the revision petitioners relied on Gangavarapu Hanumantha Rao @ Anjaneyulu V. Battigiri Ramulu and others[1] and strenuously contended that the appointment of a Commissioner is unsustainable. Sri Ch.Pratap Reddy, learned counsel for the first respondent referred to the petition filed by the revision petitioners themselves in O.S.No.127 of 2005 for appointment of a Commissioner to make local inspection and to survey, demarcate and fix the boundaries of the suit land with the assistance of a Mandal Surveyor, and stated that even the revision petitioners desired such an exercise to be undertaken for an appropriate adjudication of the disputes between the parties. The point for consideration is whether the impugned order needs to be interfered with? POINT:- O.S.No.202 of 2008 is a suit for permanent injunction simpliciter which has to be determined primarily on the basis of possession and enjoyment of the subject land by the date of the suit. It is clear from the material on record that the revision petitioners are claiming an extent of Ac.06.00 gts., in Sy.No.98/EE and they claimed the first respondent herein to have filed the suit in respect of the plaint schedule land in this suit as a counter blast, overlapping the land claimed by them. The dispute is claimed by the revision petitioners as essentially a boundary dispute, whereas it is claimed by the first respondent to be essentially the result of an attempt by the revision petitioners to interfere with his possession and enjoyment of his suit land. The physical features existing on land, in the event of such a dispute, may be of relevance in providing circumstantial corroboration for the claims of either party, as what need not possibly be disclosed by oral evidence can possibly be deduced from the physical features appearing on land. The first respondent claims about the water canal being connected to the land by P.V.C. pipe line and the bore well installed in the suit land for irrigating his crops. He also claimed to be having a fencing with thorn and stone pillars as a dividing feature which was damaged. These physical features cannot be said to be totally irrelevant to the claims of the first respondent and if he wants to record them through an independent Commissioner, the recording of such physical features cannot be considered to be an exercise in futility. In Gangavarapu Hanumantha Rao @ Anjaneyulu’s case referred supra, the learned Judge, of course, observed that filing of applications for appointment of Commissioners, under Order 26 Rule 9 of the Code of Civil Procedure, in suits for perpetual injunction cannot be treated as a matter of routine and it is also true that the learned Judge was of the opinion that the appointment of Commissioners, at the initial stages, is prone to be treated as a step to gather evidence and, therefore, advised the Courts to discredit the filing of such applications at the initial stages. The learned Judge did not state for a moment that such applications are not maintainable at the initial stages, but the test, as could be seen from the observations of the learned Judge, is whether the attempt was to gather the evidence at the initial stages, without any necessity for such exercise, to establish possession over the disputed property. The necessity or otherwise of such an exercise depends on the facts and circumstances of each case and at any rate the learned Judge has not laid down any ratio decidendi against the appointment of a Commissioner if required at any stage of a suit. On the facts of the present case, if the removal of the thorn fencing and stone pillar fencing and the interference with the P.V.C pipe lines of the first respondent were true, the consequential physical features may not continue to exist till the end of the litigation to be noted by any Commissioner and therefore, it becomes necessary to have such features recorded for an effective and comprehensive adjudication of questions in controversy in the suit. Attention was also drawn to the observations of the learned Judge in Para No.8 of the decision cited, but the present case is distinguishable as the alleged non-consideration of the request for appointment of an advocate Commissioner at the instance of the first respondent for a similar purpose was by a different Court in a different suit. As seen from the copy of the petition in O.S.No.127 of 2005 by the revision petitioners 1 and 2 before the Junior Civil Judge’s Court at Zaheerabad, the revision petitioners also desired local inspection by a Commissioner purportedly for the purpose of demarcation mainly and the affidavit in support of the petition clearly shows particularly in Para Nos.4 and 5 of the affidavit that the revision petitioners are as much alleging the existence of such physical features as may corroborate their claims of possession of the subject property. While that application in O.S.No.127 of 2005 will have to be determined by the concerned Court uninfluenced by any proceedings in this suit or the appointment of a Commissioner in this suit, the facts and circumstances, thus, do not show any absence of justification for the order of the trial Court and revisional jurisdiction need not be invoked to interfere with the said order. Accordingly, the Civil Revision Petition is dismissed without costs. But, the revision petitioners are always at liberty to file their work memos before the Advocate Commissioner and have them answered. ___________________ G. BHAVANI PRASAD, J 23rd October 2009 KH [1] (2007 (6) A.L.T. 633)