This Civil Revision Petition is filed aggrieved by docket order dated 18.10.2012 passed in I.A.No.378 of 2012 in O.S.No.101 of 2012 (I.A) on the file of Senior Civil Judge, Dharmavaram, Anantapur District.

The petitioner herein is the plaintiff and the respondents herein are the defendants in the suit.

The plaintiff filed O.S.No.101 of 2012 against the defendants for permanent injunction in respect of the suit schedule property situated in Survey No.410, near Dharmavaram, Anantapur District (property). The claim of the plaintiff is that she got property in Survey Nos.411/1, 2 and 3 also. As there is dispute with regards to the identity of the property, the defendants filed the I.A. for appointment of Commissioner to note down the physical features and to demarcate the property in Survey No.410 along with Survey Nos.411/1, 2 and 3 with the help of Mandal Surveyor. The Court below, through the impugned order dated 18.10.2012, allowed the I.A. Aggrieved thereby, the present Civil Revision Petition is filed.

Learned counsel for the petitioner contends that as the matter is at the initial stage, appointment of an advocate commissioner directly leads to collection and gathering of evidence.

Learned counsel for the respondents has contended that while conducting the survey or carrying out the commissioners work, necessary direction may be given to the concerned authority to localize the property with the help of an authenticated revenue documents, including the relevant FMB and also to take the video.

What is important here is that the respondents are not at all claiming the suit schedule property. There is only identity dispute, which can be settled. There is no question of collection of any evidence against the interest of the plaintiff. If there is no localization of the property/properties there will not be proper disposal of the suit and confusion or ambiguity or uncertainty will prevail in the minds of the parties which is very unhealthy and detrimental to the parties as it leads to unnecessary prolongation of the litigation. Once there is clear demarcation of the property there is every likelihood of effecting compromise between the parties which will enable them to live in peace and tranquility. Apart from that only a qualified surveyor will properly demarcate the properties. It is futile to assert that that can be done by adducing oral and documentary evidence before the Court because any amount of oral evidence in that behalf is not suffice to do so. On the basis of oral and documentary evidence to be adduced before the Court necessary relief can be granted in favour of one of the parties but it will be meaningless unless there is clear demarcation of the properties and the litigation in fact ends thereby. The parties approach the Courts for resolving their disputes or for the redressal of their grievances which the Courts have to take care of. Justice cannot be denied or delayed for want of fulfilling certain technicalities.

The same view was taken in Haryana Waqf Board v Shanti Sarup (2008) 8 SCC 671 [LQ/SC/2008/1457] )under similar circumstances. In that decision, a suit was filed for declaration and injunction in respect of certain property. The matter went up to the High Court of Punjab & Haryana in the form of filing second appeal where it was dismissed on the ground that it was concluded by concurrent findings of fact arrived at by the Courts below whereby the matter was taken to Supreme Court. The Supreme Court on the analysis of the facts and circumstances of the suit observed and held as follows.

The dispute that was raised by the parties before the court was whether the respondent had encroached upon any land belonging to the appellant Board. Therefore, it cannot be in dispute that the dispute was in respect of the encroachment of the suit land.

Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC.

The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorised possession in respect of the suit land by them as per Para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected.

It is also not in dispute that 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 at 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.

For the reasons aforesaid, we are of the view that the High Court ought to have considered this aspect of the matter and then decided the second appeal on merits. Accordingly, we set aside the judgment and decree passed in the second appeal and the second appeal is restored to its original file.

The High Court is requested to decide the second appeal in the light of the observations made hereinabove within six months from the date of supply of a copy of this order to it. The appeal is thus allowed. There will be no order as to costs.

These observations or findings of the Supreme Court clearly mandate that when there is a dispute or issue with regards to identity of a property in a litigation it is necessary to appoint a Commissioner for localizing the property which may be even by taking necessary assistance from a qualified surveyor which will not amount to collecting evidence which is prohibited.

Therefore the appointment of a commissioner in that context is not against the ambit of Order XXVI Rule 9 CPC which is relevant here. This provision contemplates Commissions to make local investigations.- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

By virtue of this provision appointment of a Commissioner to visit the suit property and also demarcate the property or properties taking assistance from a qualified surveyor and also note the physical features of the property in question is qualified. The words incorporated In any suit in which the Court deals a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court are very important in the present context. There is no restriction with regards to the appointment of a person to carry out such local investigation for the purposes noted therein. This includes impliedly the power of the Court to appoint a commissioner to visit such property and get it surveyed and also noted its physical features taking help from a qualified surveyor subject to necessary requirement.

Thereby the statute permits in that context collection of required evidence in that behalf by way of visiting the property demarcating it and localizing it and also just noting the physical features thereon subject to the limitations enumerated in the order. So the Court shall fully utilize this provision when the implementation of it is needed for proper disposal of the proceedings before it. Generally a report filed by such a person or commissioner with regards to those aspects is taken into consideration for the purpose of deciding an issue before a Court in respect of which such commission is carried out unless for reasons to be recorded that is set aside and another commissioner is appointed in that behalf. Prevention of collection of such evidence is definitely against the purport of this statutory provision which thereby cannot be permitted. When a person got a right to make use of certain provision of law for proper adjudication of a matter in controversy accordingly he is to be permitted to avail that provision otherwise that becomes redundant. The availment of the provision may be disallowed if that results in causing prejudice or loss to a party or lead to recording of evidence which cannot and should not be done by the commissioner one way or the other. Mostly what the commissioners so appointed do and report consequently in the cases of this nature will not affect the rights of the parties to the litigation owing to the fact that the determination of their rights could only be on the basis of necessary oral and documentary evidence they adduce before the Court which cannot be done by way of appointing commissioners to localize their properties or note their physical features as required which can be used as an aid to achieve the main object. Therefore, it is always encouraging to see that such localization is carried out at the beginning of corresponding litigation only.

The question of identity of properties involved in litigation will have same bearing irrespective of the nature of the consequential relief sought for be it for granting permanent injunction or declaration or possession etc., as the case may be. By that reason no differentiation can be made while entertaining the plea of demarcation of the properties concerned.

In BatchuNarayana Rao v Batchu Venkata Narasimha Rao (2010 (5) ALD 83 [LQ/TelHC/2010/448] )this Court considered similar question of appointment of commissioner in a suit to identify the property scheduled therein, to fix boundaries thereof, to measure the property and also to ascertain the possession of a party over the property which was not permitted. Under those circumstances this Court held as follows.

Time and again this Court held that a Commissioner cannot be appointed to gather evidence for and on behalf of any party. It is for the party concerned, to establish its case and the feasibility of appointing a Commissioner will be considered, if the Court feels that inspection and further enquiry is necessary, having regard to the uncertainty, that came into existence, after the trial has progressed to certain extent. In the instant case, the respondent not only wanted the Commissioner to identify the suit schedule property and fix the boundaries thereof, but also to file a report, as to his possession over the land in R.S.No.532/1 of that Village and the one in possession of a person who is not a party to the suit.

It needs to be noted that the report on those aspects, which would become part of the record, will have its own impact on the rights of other parties and in relation to property which is not the subject matter of the suit. Though the scope of present Revision Petition is very limited, this Court is constrained to make the observations vis--vis the order passed in I.A.No.1194 of 2007, lest there exists an occasion for miscarriage of justice. It is competent for this Court, under Article 227 of the Constitution of India, to set right the deviations, if any, that have taken place before the Courts subordinate to it.

These observations were made certainly in the context of taking steps for collecting necessary evidence of actual possession of one of the parties over the property which could not be done. The same analogy in my considered opinion is not applicable to the facts and circumstances of the present case.

For the reasons discussed, I do not find any reason to interfere with the order passed by the Court below, which in my opinion, is one which was properly considered.

Subject to the above observation, the Civil Revision Petition is dismissed.

The Miscellaneous Petitions, if any, pending in this Civil Revision Petition shall stand closed.