THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.5435 OF 2009 DATED:18-11-2010. Between Smt. K.Sheela … Petitioner-plaintiff And 1.Smt. Shakuntala and another …Respondents-defendants THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NO.5435 OF 2009 ORDER: This revision is directed against the order, dated 10-09-2009 in I.A.No.196 of 2009 in O.S.No.7 of 2002, on the file of the Junior Civil Judge, Tandur, Ranga Reddy District, whereunder and whereby the application filed under Order XXVI Rule 9 CPC to appoint an Advocate commissioner to survey the petition schedule lands and demarcate the same and to fix boundaries with stones with the help of qualified surveyor, was allowed. 2. Learned counsel appearing for the petitioner-plaintiff contended that there is a natural bund existing between the land of the petitioner-plaintiff and the respondents-defendants which physically divides the land of both parties and the same has not been denied or disputed, that when there is no dispute with regard to the boundaries, question of appointment of an Advocate commissioner to note down physical features of property in dispute does not arise and hence, he prays to allow the revision. 3. On the other hand, learned counsel appearing for the respondents-defendants contended that because the petitioner is creating boundary dispute and as the petitioner is adjacent owner of the land of the respondents, the lands of both parties can be measured with reference to their registered sale deeds and an Advocate commissioner can be appointed to fix the boundaries so that the issue can be settled once for all, that the trial Court rightly appointed an Advocate commissioner and there are no grounds to interfere with the same. 4. The Court may, in any suit, issue a commission to such person as it thinks fit directing him to make local investigation and to report thereon for the purpose of elucidating any matter in dispute. The object of local investigation is not so much to collect evidence, which cn be taken in Court but to obtain evidence which from its very peculiar nature can be had only on the spot. Such evidence enables the court to properly correctly understand and assess the evidence on record and clarifies any point which is left doubtful. It also helps the court in deciding the question in controversy pending before it. 5. Learned counsel for the respondents-defendants relied on a decision reported in HARYANA WAQF BOARD V SHANTI SARUP AND OTHERS [1], wherein it was held thus: “It is also not in dispute even before the appellate court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land” 6. He further relied on a decision reported in VARALA RAMACHANDRA REDDY V MEKALA YADI REDDY AND OTHERS [2], wherein it was held thus: “In M.L.Srinivas Rao’s case (supra) it ha been held by a learned single Judge of this Court that Commissioner can be appointed in a suit for permanent injunction to survey and for demarcating the lands and to give his report about the boundaries. The same proposition has been laid down by another learned Single Judge of this Court in Pandari Pedda Saidaiah’s case (supra). The Supreme Court also held in Haryana Waqf Board’s case (supra) that a Commissioner can be appointed for the purpose of demarcating in respect of the suit land. The above referred three decisions squarely apply to the facts of the case on hand. The trial Court committed a serious error in dismissing the application filed by the petitioner-plaintiff for appointment of Advocate Commissioner for local inspection of the suit site and to demarcate the suit schedule property with the help of a Surveyor.” 7. He further relied on a decision reported in D.VIDYA SAGAR RAO V K.INDIRA DEVI [3], wherein it was held thus: “In the instant case, inasmuch as there appears to be boundary disputes as both the petitioners an respondents are claiming to own land in the very same survey numbers, the Curt below had appointed a Surveyor to locate and fix the boundaries, with reference to the plan, an no exception can be taken to such an order. Whether warrant traveled beyond the decree” 8. He further relied on a decision reported in MALLIKARJUNA SRINIVASA GUPTA V K.SHESHIREKHA [4], wherein it was held thus: “There is no dispute regarding the proposition laid down by the Supreme Court. It is an undisputed fact that the power under Article 227 is wider than the one conferred on the High Court by Article 226 and it is also an undisputed fact that the power of superintendence of the High Court is not subject to some technicalities of procedural or traditional fetters, which are to be found in Certiorari jurisdiction. In order to resolve the dispute between the parties and in order to do justice to both parties, it is essential to appoint a commissioner. By appointing a Commissioner and by local inspection of the disputed land, no prejudice will be caused. On the other hand, it will help the Court to render complete justice. I am therefore, of the opinion that the order of the lower Court cannot be sustained.” 9. He further relied on a decision reported in MOHAMMED MAHMOOD V MUNICIPAL COUNCIL, SURYAPET, NALGONDA DISTRICT [5], wherein it was held thus: “It would be just and proper to appoint a Commissioner for the purpose of localization or identification of the disputed property. There cannot be any two opinions in relation to the proposition of law which had been laid down in the aforesaid decisions.” All the above decisions would indicate that when there is a dispute with regard to boundaries between the parties, certainly a commissioner could be appointed to measure the land and fix boundaries. It is the specific case of the petitioner that the land of the petitioner and the respondents is separated by a natural bund which physically divides the land and the said bund is in existence for over forty years and there are several trees like eucalyptus and neem etc., on the bund. The said fact has not been denied or disputed by the respondents in the written statement. When the respondents have not disputed about the existence of bound between the land of the petitioner and the respondents since several years, it cannot be said that it is a case of boundary dispute between the parties. Even in the affidavit filed in support of the petition for appointment of an Advocate commissioner, it is not specifically stated that there is a boundary dispute between the petitioner and the respondents. It is stated that the petitioner is disputing about the boundaries, but that cannot be a ground for appointment of an Advocate commissioner. Therefore, the decisions relied on by the learned counsel for the respondents have no application to the present facts of the case. In view of the fact that there is no boundary dispute between the parties, question of appointment of an Advocate commissioner does not arise. Hence, the impugned order is liable to be set aside. 10. Accordingly, the Civil Revision Petition is allowed setting aside the order, dated 10-09-2009 in I.A.No.196 of 2009 in O.S.No.7 of 2002, on the file of the Junior Civil Judge, Tandur, Ranga Reddy District. No order as to costs. _______________ K.C. BHANU, J DATED:18.11.2010 Hsd [1] (2008) 8 SCC 671 [2] 2010 (4) ALD 198 [3] 2004 ALD 426 [4] 2006 (4) ALT 162 [5] 2008 (5) ALD 668