IMPORTANT POINT
The appointment of a second Commissioner is only justified when the report of the first Commissioner is unsatisfactory and the court is dissatisfied with his proceedings.

ORDER :

Heard learned counsel for the petitioners and learned counsel for the respondents.

2. For the sake of convenience the parties are referred to as they are arrayed in the suit before the lower Court.

3. This civil revision petition is Challenging the propriety and legality of the order dated 11.10.2022 passed in I.A.No.35 of 2021 in O.S.No.5 of 2020 by the Additional Senior Civil Judge, Gadwal, Jogulamba-Gadwal District.

4. The plaintiffs filed the suit for perpetual injunction contending that the defendants were trying to interfere with their possession and enjoyment of their lands. No where in the plaint, there is allegation that there is boundary dispute in respect of the plaintiffs and the defendants in respect of the suit lands. For the first time, at para 8 of the petition, it is stated that the dispute is purely a boundary dispute. A perusal of the written statement would show that the defendant clearly stated that the boundaries shown in the plaint schedule are correct, but the extents mentioned therein are not correct. It is also stated in para 15 of the written statement that as per orders of the District Collector, the Tahsildar, Maldakal Mandal with the help of the Revenue Inspector and Mandal Surveyor conducted survey of the plaint schedule lands and submitted report showing the extents in possession of the plaintiff.

5. The fact that such survey was conducted and report was submitted is not denied by the plaintiffs by way of rejoinder in view of the fact that it can only be said inferentially that the plaintiffs sought for appointment of Advocate Commissioner for localization of the suit lands to get over the survey report, which is against them.

6. In a judgment reported in 2006(4) ALT 23 (S.B) in Seepally Thirupathi and others v Repelli Mallikarjun and others, in particular, para 10 reads as under:

“10. It is pertinent to note that merely because scientific enquiry had been referred to, it cannot be said that under the guise of those provisions, when already a report of Commissioner is available on record, the learned Judge without recording any reasons, expressing either the deficiency or otherwise relating to the said report, cannot appoint yet another Commissioner. Hence, in this view of the matter, the learned Judge had not committed any illegality whatsoever in dismissing the application.”

7. In a judgment reported in 1996 SCC online AP 753 in Kushal Rao v Shyam Rao and another, in particular, the relevant portion of para 7 reads as under:

“The law in regard to the appointment of more than one Commissioner by virtue of Order XXVI Rule 10 of the Code is no longer res integra and has been settled by precedents, including the precedents of this Court. As a normal rule, there is no doubt that two separate commissions should not be issued to deal with one and the same subject and to treat the , report of both the Commissioners as evidence in the case.

It is only when the report of the first Commissioner is unsatisfactory and the Court is dissatisfied with his proceedings, that a second Commissioner could be appointed under the provisions of Order XXVI Rule 10 Sub-clause (3). If a second Commissioner is appointed either by rejecting the report of the first Commissioner or Without that, the legal effect is that the report of the first Commissioner may be wiped out in law.

8. This Court opines that the judgments relied upon by the counsel for the petitioner do not apply to the facts of the present case, and there is no illegality in the order dated 11.10.2022 in I.A.No.35 of 2021 in O.S.No.5 of 2020 passed by the Additional Senior Civil Judge, Gadwal, Jogulamba-Gadwal District.

9. In view of the above facts and circumstances of the case and duly considering the view of the Court in its judgment dated 06.03.2006 passed in C.R.P.No.1573 of 2005 reported in 2006(4) ALT 23 in Seepally Thirupathi and others v Repelli Mallikarjun and others and also the view taken by the Court in its judgment dated 10.10.1996 passed