SYDU SRINIVASA RAO Vs. SYDU NARAYANA SWAMY

JUDGEMENT

(1.) The order in IA.No.2332/1996 in O.S.No.472 of 1996 on the file of Principal District Munsif, Eluru, dated 29-1-1997 refusing to appoint a Commissioner for making local inspection and for noting the physical features is assailed in this revision petition.

(2.) The petitioners are the plaintiffs in O.S.No.472/1996. Their case is that Respondents 1 to 3 have wrongfully dug fish tanks without any semblance of right or authority and they have encroached upon the unsurveyed Government land viz., Bodi and bunds, and also the passage formed by the revision petitioners and thereby they have obstructed their right to passage from the village of Pedayaganamilli to their fish tanks. It is also their case that they have removed the electric poles and service wire and on the complaints made by the villagers, the electricity was restored. The petitioners submitted a petition to the revenue authorities pointing out that the Respondents 1 to 3 have wrongfully encroached the Government unsurveyed lands and illegally dug fish tanks, but Respondents 4 and 5 have failed to take any action against Respondents 1 to 3. It is therefore asserted that it is necessary to appoint an Advocate-Commissioner for local inspection for appreciation of their contentions in the suit and to ascertain the extent of wrongful acts committed by respondents 1 to 3 and hence an Advocate- Commissioner may be appointed. The learned Principal District Munsif, after hearing bom sides, passed a brief order rejecting the petition. One reason recorded in the impugned order is that the tank (reference to disputed land) is full of water and no useful purpose will be served by appointing a Commissioner to take the measurements of the land. The learned Assistant Government Pleader also appears to have represented that the Government tried to measure the land, but it could not do so on account of water in the tank. Another reason is that the petitioners can produce other evidence in support of their claim to establish the physical features. Accordingly, the petition has been rejected.

(3.) Sri P. Sriraghuram, learned Counsel for the revision petitioners contended that an Advocate-Commissioner should have been appointed for the purpose of local inspection and for noting the physical features set out under 'a to d' in the petition and if there was any difficulty in carrying out the work, the Advocate-Commissioner would have come forward with a report to that effect, but the ground on which the petition is rejected viz., mat there is water in the tank and the purpose will not be served is not correct. He, therefore, urged that the impugned order may be set aside and an Advocate-Commissioner may be appointed. On the other hand Sri P.Suresh, learned Counsel for Respondents 1 to 3 contended that a C.R.P. is not maintainable against the impugned order as it is not a 'case decided' within the meaning of Section 115 of the Code of Civil Procedure as held by Punjab and Haryana High Court in Harvinder Kaur v. Godha Ram, AIR 1979 P & H. 67. He further contended that a Commissioner cannot be appointed for the purpose of deciding whether Respondents 1 to 3 have encroached upon any Government land or to what extent and that it is a matter to be decided by the Court and such a power cannot be delegated to a Commissioner. According to him, appointment of Commissioner would mean delegation of power of the Court to adjudicate upon the dispute between the parties. He, therefore, urged that C.R.P. may be dismissed.