(Petition under Section Article 227 of the Constitution of India of CPC., to revise the order dated 17/1/2008 and made in I.A.No.338 of 2007 in O.S.no.146 of 2005 on the file of the Court of the Junior Civil Judge, Suryapet.)

Heard Sri. K. Narasimha Rao representing Sri Syed Naimullah Shakeel, the Counsel representing Revision Petitioner.

2. Respondents had been served and proof of service had been filed. None represents the respondents.

3. Sri. K. Narasimha Rao, the learned Counsel representing Revision Petitioner would maintain that no doubt an application for appointment of Commissioner was made in I.A.No.26/2006 in O.S.No.146/2005 on the file of Junior Civil Judge, Suryapet, but at that time, respondents 2 and 3 were not parties and inasmuch as liberty was given to move appropriate application after impleading those parties, at the appropriate stage this application was filed and hence, there is no bar to maintain the present application. The learned Counsel also would maintain that in the light of the respective stands taken by the parties, inasmuch as, this is a boundary dispute as to the identity of the private land and the adjacent Government land, unless a Commissioner is appointed for the purpose of localizing the plaint schedule property, it may not be possible to decide the disputed questions between the parties. The learned Counsel also would maintain that in the light of the application and also in the light of the vague counter affidavit filed by R.2 and R.3, the application should have been ordered instead of dismissing the application. The learned Counsel also placed strong reliance on several decisions to substantiate his submissions.

4. The present Civil Revision Petition is filed by the unsuccessful petitioner-plaintiff being aggrieved of the order made in I.A.No.338/2007 in O.S.No.146/2005 on the file of Junior Civil Judge, Suryapet. The said application was filed by the petitioner under Order XXVI Rule 9 with Section 151 of the Code of Civil Procedure (Hereinafter in short referred to as the Code for the purpose of convenience) praying for appointment of Commissioner to conduct survey and find out whether the suit schedule land in part and parcel of Sy.No.14 or Sy.No.35 of Suryapet Village and to submit the report with a specific location, extents, physical features and extents, structures thereon. The case of the petitioner is that the petitioner is the Pattedar of Sy.No.14 of Suryapet village and one of the owners and possessors of the suit land being part and parcel of Survey No.14. The authorities of the 1st respondent 1st defendant Municipality made an attempt to encroach upon the plaint schedule property and hence, the petitioner was left with no other option except to institute the suit for perpetual injunction. In the light of the stand taken in the written statement of 1st defendant, it came to light that the 2nd defendant created interest in favour of the 3rd defendant, the claim of defendants 1 to 3 is that the suit schedule land is part and parcel of Government land in SY.No.35 which is lying on the East of the land in Sy.No.14 and several further facts and details relating to topography also had been explained in the affidavit filed in support of the application.

5. In the counter filed by respondents 2 and 3 it was stated that an application for similar relief had been filed and the same was dismissed and the 2nd application cannot be maintained and even otherwise, there are no changed circumstances and the petitioner is trying to gather evidence by appointment of Commissioner and the same is impermissible.

6. The learned Junior Civil Judge, Suryapet by order dt.17-1-2008, after formulating the point for consideration at para 5, recorded certain reasons at para 6 and ultimately dismissed the application. Aggrieved by the same, the present Civil Revision Petition had been preferred under Article 227 of the Constitution of India.

7. This Court admitted the C.R.P. on 25-4-2008 and granted interim stay in C.R.P.M.P.No.2337/2008. The certified copy of the order dt.20-4-2006 made in I.A.No.26/2006 in O.S.No.146/2005 was paced before this Court. The said application was filed under Order XXVI Rule 9 read with Section 151 of the Code praying for appointment of Commissioner to conduct survey and to find out whether the suit land viz., Ac.2-20 gts., of dry land in Sy.No.14 of Suryapet town in part and parcel of Sy.No.14 or Sy.No.35 and submit report with specific location, extent, physical features and existing structures thereon. The Municipal Council, Suryapet represented by its Commissioner/Special Officer alone was the party then as respondent-defendant. The said application was resisted. After recording reasons, the learned Junior Civil Judge, Suryapet, having observed that there is no merit in the petition, dismissed the same, but however, opined that the petitioner to file fresh application in respect of suit land at an appropriate stage by duly making the Department of Culture, Government of A.P. as one of the parties which is presently in possession and enjoyment of Ac.2.00 land in Sy.No.35 abutting the suit land intervened by drainage canal. It is brought to the notice of this Court that the Government of A.P. and the Director of Cultural Affairs, Department of Youth Advancement Tourism & Culture, Government of A.P., were impleaded as parties respondents 2 and 3/defendants 2 and 3 respectively. Hence, in the light of the liberty given by the learned Junior Civil Judge, Suryapet, by order dt.20-4-2006, it cannot be said that an application for appointment of Commissioner is not maintainable. It may be that this a second application, but the second application had been filed after impleading those parties as defendants in the suit and in the light of the liberty granted by the learned Junior Civil Judge, Suryapet, already referred to above. In the light of the respective stands taken by the parties, the dispute appears to be whether the plaint schedule property is located in Sy.No.14 or Sy.No.35. The specific case of the petitioner is that the 1st respondent made an attempt to encroach upon his properties and hence he was constrained to file the suit. When the dispute is a boundary dispute and the exact location of the land, it is needless to say that the measurements are to be taken with reference to the revenue records, if possible with the assistance of a Surveyor or preferably a survey knowing Commissioner, as the case may be. The learned Counsel representing the Revision Petitioner placed strong reliance on D. Vidya Sagar Rao v. Smt. K. Indra Devi (2004 (2) ALT 689 [LQ/TelHC/2004/87] ); Chukka Venkatadri and another v. Mallavarapu Mahalakshmamma (2006 (3) ALD 87 [LQ/TelHC/2005/987] ); and Mallikarjuna Srinivasa Gupta v. K. Shashirekha (2006 (3) ALD 362 [LQ/TelHC/2006/340] ) to substantiate his case that in a case of this nature, 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.

8. Hence, in the light of the facts and circumstances, the Civil Revision Petition is hereby allowed by setting aside the impugned order. No order as to costs. Let the learned Junior Civil Judge, Suryapet appoint a Commissioner for the purpose prayed for in the application by permitting him to take the assistance of a Surveyor or appoint a survey knowing Commissioner, as the case may be.

9. Accordingly, the Civil Revision Petition is hereby allowed and the application is ordered. No order as to costs.