GONIPATI TATABBAI Vs. MANUKONDA ATCHAYAMMA

JUDGEMENT

(1.) This civil revision petition is filed against order, dated 27.07.2011, in I.A.No. 113 of 2009 in O.S.No. 18 of 2006, on the file of the learned Junior Civil Judge, Razole. The petitioner filed the above-mentioned suit for declaration of title. The trial of the suit is yet to begin. He has filed I.A.No. 113 of 2009 for appointment of an Advocate Commissioner to localise the suit schedule property and to draw a line of demarcation between his lands and that of the defendants. This application was dismissed by the lower Court by observing that the application is premature.

(2.) At the hearing, Ms. Nimmagadda Revathi, learned counsel, representing Sri Nimmagadda Satyanarayana, learned counsel for the petitioner, questioned the reasoning of the learned Junior Civil Judge, Razole and contended that an Advocate Commissioner can be appointed at any stage for making local inspection. In support of this contention, she placed reliance on the judgment of this Court in N. Savitramma and another v. B. Changa Reddy, 1988 1 APLJ 45.

(3.) Order XXVI Rule 9 CPC does not prescribe any stage for appointment of an Advocate Commissioner. However, there seem to be divergent opinions on this aspect. In N. Savitramma (1 supra), a suit for declaration of title and for permanent injunction was filed. The defendant filed an application for appointment of a Commissioner for noting down the physical features of the property, as it is his pleaded case that the entire mango garden, which belongs to him, forms one single unit and the same was surrounded by fencing separating the land of the petitioners with that of the mango garden in question. The said application was dismissed by the trial Court on the ground that unless the evidence is let in and the documents are perused, the Commissioner could not be appointed. When the said order was questioned by the unsuccessful defendant, this Court has reversed the same. After referring to the judgment of the Madras High Court In Re P. Moosa Kutty, 1953 AIR(Mad) 717, and the judgments of this Court in C. Veeramma v. C. Venkatachalam, 1959 AIR(AP) 170, Y. Sambaiah v. J. Basavapurna, 1975 AIR(AP) 15and K. Kutumba Rao v. M. Venkata Subba Rao, 1969 AIR(AP) 47(DB), this Court, while placing reliance on the last mentioned Division Bench judgment of this Court, held as under: