M. P. CHINNAPPA, J. ( 1 ) HEARD the learned Advocates appearing for both the parties. ( 2 ) THE petitioner who is a plaintiff in O. S. No. 310 of 1996 on the file of the Additional Civil Judge (Junior Division), Pavagada, filed an application numbered as I. A. 14 under Order 26, Rule 9 of the CPC for appointment of a Surveyor as Court Commissioner to measure the land of the plaintiff and defendants. That application was dismissed by order dated 7-6-2001 on the ground that similar application I. A. 7 was dismissed on 2-11-1996 and it has become final and conclusive and operates as res judicata. Being aggrieved by that order, the petitioner is before this Court. ( 3 ) THE learned Counsel for the petitioner submitted that the dismissal order of interlocutory application would not operate as res judicata and in support of this argument he has placed reliance on several decisions rendered by: (A) Supreme Court in Pandurang Ramchandra Mandlik (deceased) by L. Rs and Another v Smt. Shantabai Ramchandra ghatge and Others, wherein it is held that: "section 11 is applicable only to the suits and not other proceedings". (B) This Court in the Division Bench in Neelakantappa v laxman, held that: "so far as interlocutory matters are concerned, the principles of res judicata do not strictly apply". (C) Orissa High Court in Mahadeo Mahto and Others v Hiralal verma and Others", also held that: "the principles of res judicata is not applicable in case of interlocutory orders". (D) Their Lordships in Supreme Court in United Provinces Electric supply Company Limited v T. N. Chatterjee and Others, held that: "the principles of res judicata is not applicable to interlocutory orders as they are not final orders". ( 4 ) HOWEVER, the learned Counsel for the respondents has drawn my attention to the judgment of the Single Judge of this Court in Datta- traya v Srinivasa Bhat Thammanna. In that case the finding as to jural relationship was treated as a preliminary issue and the Court has given a finding. Under that circumstance, the Court held that:"finding on interlocutory application having become final operates as a res judicata". Therefore, from the facts of the case it is also clear that the Court has given a finding on the issue and that was treated as final and conclusive. Under that circumstance, the Court held that:"finding on interlocutory application having become final operates as a res judicata". Therefore, from the facts of the case it is also clear that the Court has given a finding on the issue and that was treated as final and conclusive. ( 5 ) THEREFORE, viewed from any angle and in view of the decisions referred to above, I hold that the finding of the Court below is illegal and calls for interference. ( 6 ) COINING to the facts of the case, the real dispute of the parties is in regard to the fixation of the boundaries. The petitioner claims that the defendants have encroached the property, which can be resolved only by conducting the survey. ( 7 ) FOR the foregoing reasons, this petition is allowed and the impugned order is set aside directing the Court below to appoint a Commissioner after hearing to both the parties and pass necessary orders in accordance with law. --- *** --- .