ORDER:

This Civil Revision Petition, under Article 227 of the Constitution of India, is filed against the orders, dated 07.05.2018, allowing I.A.No.296 of 2017 in O.S.No.196 of 2015 on the file of the Court of Junior Civil Judge, Pattikonda, filed under Order 26 Rule 9 CPC by the defendants No.1 and 2 to appoint an advocate-Commissioner to make local investigation to note down the topographical features of the suit schedule locality as shown in the plaint plan and as per the documents filed by the petitioners and the respondents, with the assistance of a Mandal Surveyor after receiving the work memo of both parties.

2. Heard learned counsel appearing for the parties.

The suit is filed by the respondent for permanent injunction in respect of the property shown in the following schedule:

S C H E D U L E The open site (“P, Q, R, S” in the plaint plan) is situated at Gonegondla village and Mandal within Sub-Registration District of Kodumur and District Registration of Kurnool within following boundaries:

Survey No. Extent

995 East-West : 5.5 ‘ feet North-South : 66’ feet Boundaries: East : House of Gudikal Lakshmi Devi, W/o Pedda Rangaswamy West : House of Prabhakar Naidu North : House and open sites of the plaintiff South : Defendants’ site and plaintiff’s new constructed house

3. The defendants filed their written statement stating that the plaintiff has shown in the plaint plan an open site belonging to the first defendant and the said site was purchased by the first defendant from the mother of plaintiff and later the first defendant submitted an application to the gram panchayat to accord permission for construction of rooms in that site and basing on that tried to construct rooms after filing a petition before the Mandal Tahasildar to direct the Mandal Surveyor to measure the site. The plaintiff gave notice to them not to measure the land as the suit is pending. The Mandal Tahasildar refused to measure the land as the suit is pending. Since the said site is not in dispute and these defendants intend to construct rooms in his open place shown in the plaint plan, there is urgency to appoint an advocate commissioner to make local investigation with the assistance of Mandal Surveyor of Gonegandla.

4. The petition was opposed by filing counter of the respondent/plaintiff stating that all the averments in the affidavit are false and that the petitioners failed to give description of the property in schedule in respect of which appointment of Commissioner is sought and further the petitioners failed to give reason for what purpose the surveyor has to be appointed. It is also stated that the plaintiff has shown open site of the defendants in the plaint plan, as per the pleadings of the defendants, the plaintiff encroached their open site and thus there is inconsistency in the pleadings and hence the petition is not maintainable.

5. On contest, the trial Court allowed the petition appointing Sri D.Bala Basha, an advocate as Commissioner. The trial Court observed in the order that no schedule of the locality is mentioned in the petition where the Commissioner has to make local investigation and note down topographical features, however it further observed that the plaint plan cannot be taken as bench mark for noting down topographical features of the suit locality, but the documents filed by the petitioners and the respondent in the suit can be used for locating the suit schedule property for noting down topographical features. The trial Court noted that the petitioners mentioned about the open site shown in the plaint plan and such open site is not in dispute and further they stated about the urgency to make constructions in the undisputed open site and thereby there should not be any obstruction by the plaintiff to make such constructions. It is also observed by the trial Court that though the courts are normally reluctant to appoint a Commissioner to note down the physical features in a suit for injunction since the same would amount to co