1. This revision is directed against the order dated 07.12.2009 passed in I.A.No.995 of 2009 in O.S.No.120 of 2004 on the file of Principal Junior Civil Judge, Bhongir, whereby and whereunder, the learned Junior Civil Judge dismissed the application filed by the plaintiff in O.S.No.120 of 2004 seeking for appointment of an Advocate Commissioner to fix up the boundary between the suit land admeasuring Ac.3-38 guntas and the land of the respondents admeasuring Ac.3-10 guntas in Survey No.319 with the help of a Surveyor.

2. Background facts, in a nutshell, leading to filing of this revision by the petitioner-plaintiff, in brief, are:-

The petitioner is the plaintiff in O.S.No.120 of 2004 on the file of the Principal Junior Civil Judge, Bhongir. He filed the suit against the respondents-defendants for perpetual injunction in respect of land admeasuring Ac.3-38 guntas comprised in Survey No.319/AA. The respondents-defendants filed written statement admitting the ownership of the plaintiff in respect of Ac.3-38 guntas in Sy.No.319/AA. It is contended by the defendants that the 1st defendant is the owner of the land adjacent to the land of the plaintiff. Structures including trees existing on the bund belong to the 1st defendant and he is in possession and enjoyment of the same. They further pleaded in the written statement that the land of the plaintiff is a wet-land and whereas the land of the 1st defendant is a dry land. Both parties adduced evidence in support of their respective contentions. While the suit was coming up for arguments, the petitioner-plaintiff filed I.A.No.995 of 2009 seeking appointment of an Advocate Commissioner to fix boundary between the suit land, i.e., Ac.3-38 guntas in Sy.No.319 and the land of the respondents-defendants , i.e., Ac.3-10 guntas in Sy.No.319 with the help of a Surveyor. In the affidavit filed in support of the I.A.No.995 of 2009, the petitioner asserted that that the respondents-defendants disturbed the boundary during the pendency of the suit, and therefore, the same is required to be restored to its original position. For better appreciation, I may refer the relevant portion of the affidavit filed in support of I.A.No.995 of 2009, which reads as hereunder:-

That I filed the suit against the respondents/defendants for perpetual injunction in respect of suit land bearing Sy.No.319/AA admeasuring Ac.3-38 guntas and evidence of both sides is closed and matter is posted for arguments. As per the pleadings in written statement and oral evidence of both sides the respondents/defendants are not claiming the right, title or possession over the suit land belonging to me and the Dw.1/D.No.1 clearly admitted that they are only having right, title and possession over the land bearing Sy.No.319 admeasuring Ac.3-10 guntas which is adjoiningly situated on the northern side of the suit land. In the written statement the defendants did not plead that their land is converted as wet by the time of filing of suit and stated it as dry land. However during the cross examination Dw.1 admitted that two years prior to his deposition (on 29-7-2009) he got dug bore well and converted some part of land as wet. But, in fact the said convertion is after filing of suit by encroaching into my suit land by removing boundary fencing. The respondents/defendants disturbed the boundary during the pendency of suit which is to be restored to its original stage as on the date of filing of the suit. As per the admissions of respondents/defendants the suit is to be decreed straightaway as they are not claiming any land out of suit land. If the suit is decreed without refixing the boundary line between Ac.3-38 guntas suit land and land of Ac.3-10 guntas land of defendants by way of demarcation there will be house in getting the decree as turbel with demarcation will remain unsettled leading to day-to-day quarrels. When both sides are admitting their actual extents held and possessed in suit survey number 319 there will not be any problem to both sides if get the boundary line in between their lands is demarcated to appoint a Commissioner to do the same with the help of a surveyor. After filing of the suit also the respondents-defendants at one stage agreed to get appoint a Commissioner/Advocate to demarcate the lands of both parties to avoid complications through Lok Adalat but the dishonest defendants subsequently resiled and trying to encroach upon the suit land to cut away the trees on the northern border portion of suit land planted by me. The Dw.1 also clearly admitted in his cross examination that I lodged complaint against him as cut and tried to take away the Neam tree existing in the said border portion of suit land.

3. The respondents-defendants filed counter resisting the petition.

It is stated in the counter that the land owned by the plaintiff is a wet land and it is in low level and whereas the land of respondents-defendants is a dry land and it is at upper level. It is specifically pleaded in the counter that the boundary is very much demarcated by level of the lands. I deem it appropriate to refer the relevant portion of the counter affidavit, which reads as hereunder:-

As a matter of fact, much prior to purchase of suit land by plaintiff his land abutting our land is wet land, which is at lower level and our land is dry land at upper level, and accepting the said boundary, the plaintiff purchased the suit land from its vendor and came into possession and now plaintiff wants to demarcate his land as per record with a malafide intention to encroach into our possessed land, which is not permissible under law. We never admitted that the plaintiff is in the possession of Ac.03-38 gunts. Of land, because we are not aware of his extent of land on the spot, only as per record his name is coming to extent of Ac.03-38 gts. , and if any land is short fall, it is for him to approach his vendor and other shareholders in the said survey number on the other side. Since the land of both parties is separate and distinct as referred above and same was pleaded as such, absolutely there is no necessity to appoint any Advocate Commissioner to demarcate and fix the boundary, since boundary is already in existence by demarcating land of plaintiff at lower level in the shape of wet and our land with upper level in the shape of dry including standing trees therein which belongs to us. Further, it is submitted, before filing the suit, the petitioner/plaintiff got surveyed his land and same as we also got surveyed our possessed land along with Sy.No.343 which are in one compact block by fixing the boundary firstly to Sy.No.3453 and thereafter our land possessed in suit survey number and petitioner/plaintiff is in knowledge and result of the same and suppressing the above said survey, the present I.A has been filed with false pleas.

4. The learned Junior Civil Judge, on hearing the counsel appearing for the parties and on considering the material brought on record, proceeded to dismiss the application on the ground that Commissioner cannot be appointed to gather evidence with regard to possession of the land covered by the trees, by order dated 07.12.2009. The said order is assailed in this revision.

5. Notice before admission came to be ordered on 27.01.2010. The respondents entered appearance through a counsel.

6. Heard learned counsel appearing for the parties.

7. Learned counsel appearing for the petitioner submits that the trial Court misread the material brought on record and thereby, erred in observing that the Commission has been sought for to gather evidence. It is contended by the learned counsel that the purpose of appointment of Commissioner is to demarcate the boundary with the assistance of a surveyor and to note the existing features. Learned counsel placed reliance on the judgments of this Court in M.L.Srinivas Rao vs. J.Kurien 1997(1) A.P.L.J.61 (SN), Pandiri Pedda Saidaiah and ors. V. Thirunagairi Padmavathi 1997(5) ALD 430 and a judgment of Supreme Court in Haryana Wakf Board v. Shanti Sarup and ors. 2008 AIR SCW 6500. In M.L.Srinivas Raos case (1 supra), a learned Single Judge of this Court has held that Commissioner can be appointed to resolve the boundary dispute between the parties in a suit for permanent injunction. In Haryana Wakf Boards case (2nd supra), a learned Single Judge of this Court held that appointment of an advocate Commissioner to demarcate the land owned by the petitioners as well as the respondent with the help of the Mandal Surveyor as per the documents held by them with reference to the village map and tippons is sustainable. In Bongu Ramulus case (4th supra), a learned Single Judge of this Court held that Commissioner cannot be appointed for ascertaining as to who was in possession of the suit property on the date of the suit and it is the duty of court to decide the same on the basis of oral and documentary evidence that may be adduced by parties during trial of suit and such a function cannot be entrusted to Commissioner.

8. Learned counsel appearing for the respondents submits that the Commissioner cannot be appointed for demarcating the land in an injunction suit and therefore, the order passed by the trial Court dismissing the application does not warrant interference.

9. As seen from the counter filed by the respondents herein resisting the application seeking appointment of the Commissioner, they specifically pleaded that the plaintiff land is a wet land and it is at lower level and whereas the land owned by 1st defendant is a dry land and it is at upper level. For better appreciation, I may refer the relevant portion of the counter filed by the respondents/ defendants, which reads as hereunder:

Further it is submitted, the boundary line between our land and land of petitioner/plaintiff is too long and only a small portion of our dry land was converted into wet and allegation of the petitioner/plaintiff that by encroaching into the suit land by removing boundary fencing, a part of land is converted into wet is false. Further it is false to say, we have disturb the boundary during the pendency of the suit and boundary line of petitioner/plaintiff is in the shape of wet land and our land is dry land which is at upper level and their land is at lower level and there is no chance of encroaching into once land by other. It seems that petitioner/plaintiff purchased land from his vendor as per revenue record without measurement before registration and now he is trying to locate his land as per record under the guise of Advocate Commissioner. As a matter of fact, much prior to purchase of suit land by plaintiff his land abutting our land is wet land, which is at lower level and our land is dry land at upper level, and accepting the said boundary, the plaintiff purchased the suit and from its vendor and came into possession and now plaintiff wants to demarcate his land as per record with a malafide intention to encroach into our possessed land, which is not permissible under law.

It is evident from the counter that the defendants have specifically pleaded that the land of the plaintiff is at lower level and whereas their land is at upper level. Even to make an observation of the level of the lands as claimed by the parties, a Commissioner needs to be appointed.

10. The trial Court dismissed the application relying on the judgments of this Court in Bongu Ramulu vs. G.Narender Reddy 1998(3) ALT 473, and Parepally Satyanarayana vs.Vutukuri Meeneder Goud 2008(1) ALT 660. In Parepally Satyanarayanas case (5 supra), a learned Single Judge referred the decision in Bongu Ramulu (4 supra) and approved the proposition of law laid down therein, however, observed that the Court has power to appoint a Commissioner for local inspection of suit premises even in injunction suit and even ex parte before service of notice on opposite party in the interest of justice. It is trite to refer paragraphs 12 and 13 of the cited judgment, which read as hereunder:-

12. A Commissioner cannot be appointed to find out as to who is in possession of the property. But he can be appointed to make local investigation to ascertain the facts or other material which are found in the property and to make a report in regard to that matter to the Court. The order of the lower Court was directing the Commissioner to make local inspection of the suit premises, to break open the lock provided that the petitioner is in occupation of the premises and to note down the physical features. The Commissioner filed a report mentioning that the property was identified in the presence of both the parties and he broke open the lock and entered the suit premises and found some articles and furniture in the premises and noted the physical features. The Commissioner did not mention that the suit premises was handed over to the plaintiff. Unless he breaks open the lock, he will not be in a position to know the physical features of the mulgi from outside.

13. After going through the entire material, I am convinced that the lower Court did not pass any orders on the basis of the report of the Commissioner. The Commissioners report does not disclose any facts other than those admitted by the first defendant in the additional written statement. The petitioner requested this Court to set aside the order of the lower Court by directing recalling of warrant. But, since the warrant was already executed and report was filed and the report does not contain any material as to who was in possession of the property except observing the physical features and the articles present in the mulgi. The lower Court passed the impugned order before the service of notice on the first defendant. The Court can pass appropriate orders in the interest of justice ex parte before service of notice and it is a fundamental principle that the Court should not pass any order in the absence of the opposite party when once the notice is served and party is on record. In the light of the above circumstances, I do not find any grounds to set aside the order passed by the lower Court.

What is observed in the above referred case is that the Court has power to appoint a Commissioner for local inspection of the suit premises even in injunction suit and even ex parte before service of notice on opposite party in the interest of justice.

11. Reverting to the facts of the case on hand, the petitioner moved an application before the trial Court for appointment of advocate Commissioner to demarcate and fix the boundaries between Ac.3-38 guntas owned by him and that of Ac.3-10 guntas owned by the 1st defendant with the help of a surveyor. It is specifically stated in the affidavit filed in support of the petition that the land of the petitioner/plaintiff is a wet land whereas the land of the 1st defendant is a dry land as on the date of filing of the suit.

12. In M.L.Srinivas Raos case (1 supra), it has 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 Pandiri Pedda Saidaiahs cae (2nd supra). The Supreme Court also held in Haryana Waqf Boards case (3 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.

13. Accordingly, the Civil Revision Petition is allowed setting aside the order dated 07.12.2009 passed in I.A.No.995 of 2009 in O.S.No.120 of 2004 on the file of the Prl. Junior Civil Judge, Bhongir. Consequently, I.A.No.995 of 2009 stands allowed. The trial Court has to appoint a Commissioner to inspect the suit schedule land with the assistance of the Mandal Surveyor. There shall be no order as to costs.