ORDER :

G. Shyam Prasad, J.

1. This revision is arising out of order, dated 12.12.2018 passed in IA No. 1134 of 2018 in OS No. 176 of 2014 on the file of the Senior Civil Judge, Narasapuram, dismissing the application filed under Order 26 Rule 9 and Section 151 CPC for appointment of an Advocate Commissioner for the purpose of taking measurements of the plaint schedule land.

2. The brief facts of the case are that the respondent herein has filed Suit OS No. 176 of 2014 for recovery of Makta against the revision petitioner. The petitioner has filed a petition under Order 26 Rule 9 and Section 151 CPC for appointment of an Advocate Commissioner for measuring the land leased out by the respondent temple to the petitioner-tenant under a lease deed. The said petition was dismissed by the Trial Court on the ground that the terms of lease Condition No. 22 is to the effect that the land was leased on Makta to the tenant and the tenant is not entitled to dispute the extent of land leased out to him, as such, the revision petitioner is bound by the terms and conditions of the lease deed. Therefore, the Commissioner cannot be appointed in this case for measuring the land. The Trial Court also found that the revision petitioner has filed the above application for appointment of an Advocate Commissioner at the fag end of the trial for measuring the land, which is not required to be done under Condition No. 22 of the lease deed.

3. Learned Counsel for the petitioner vehemently contended that the petitioner intends to prove that there is difference in the extent of land as per lease agreement and the land actually leased out. It is also contended that the respondent-temple played fraud in leasing the less extent of land and claimed land for more extent of land, as such, the petitioner sought for appointment of an Advocate Commissioner for measuring the land. According to the petitioner, the appointment of an Advocate Commissioner is essential for disposal of the suit before the Trial Court.

4. Learned Counsel for the petitioner placing reliance on the judgments viz., 1. Mallikarjuna Srinivas Gupta v. K. Sheshirekha, 2006 (3) ALD 362; 2. T. Chittemma v. The Tirumala Tirupathi Devasthanams, Tirupathi, 2012 (1) ALD 118; 3. A.V.M. Sales Corporation v. Anuradha Chemicals Pvt. Ltd., and 4. Yanala Malleshwari and others v. Ananthula Sayamma and others, 2006 (6) ALD 623 (FB), contended that this a fit case where the Commissioner can be appointed for measuring the land.

5. Learned Counsel for the respondent-temple submits that in view of Condition No. 22 in the lease agreement, there is no need to appoint a Commissioner in this matter and the petition may be dismissed as the petition was filed with an intention to collect the evidence on behalf of one party.

6. At the outset, this is a petition filed under Order 26 Rule 9 CPC for appointment of Commissioner to measure the land in a suit filed for recovery of Makta. There is no dispute with regard to the title or boundaries of the land leased. Admittedly, there is a Condition No. 22 in the agreement that Makta was based on the land and the tenant cannot raise any dispute with regard to the extent of land.

7. In Mallikarjuna's case (supra), the Court held that appointment of Commissioner was essential for conducting a local inspection. It was a case where some constructions were made in the disputed land. So the Commissioner was appointed to note down the physical features to resolve the dispute in that case. In the instant case, the facts are otherwise. The petitioner took the defendant land on Makta subject to Condition No. 22 referred above. The petitioner challenged that Condition No. 22 was bad and there was fraud played by the respondent while leasing the land with Condition No. 22.

8. In the light of the above discussion, it is obvious that the facts referred in the above decision are different from the present case and hence, the decision is not application to the present case.

9. It is further argued by