ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) The petitioner-plaintiff has instituted Title Suit No.19 of 2005 in the Court of Sub-Judge-I, Kaimur, Bhabhua for declaration of title over the suit land. Pending the suit the plaintiff filed application for appointment of Court Commissioner to measure the suit land. The said application came to be rejected on 23rd June 2009 on the premise that the plaintiff had not produced old survey record. Since the dismissal of the said application, the plaintiff filed application afresh in the month of March 2011 with the old survey record. The said application has been rejected by the impugned order dated 20th December 2010 in view of the rejection of the earlier application and the delay in filing the application. 2. Feeling aggrieved the plaintiff has filed this Petition under Article 227 of the Constitution. 3. Learned advocate Mr. Satyavrat Verma has appeared for the petitioner. He has assailed the impugned order dated 20th December 2010. He has submitted that the learned trial Judge has wrongly rejected the application as barred by principle of res judicata. He has submitted that rejection of earlier application for want of relevant documents cannot constitute res judicata in respect of the matter at issue. 4. The Petition is contested by the learned advocate Mr. Dhurjati Kumar Prasad. 5. I do agree with Mr. Satyavrat Verma. Rejection of the earlier application for appointment of Court Commissioner on the ground of non-production of the old survey record would not constitute res judicata for filing application afresh. 6. On the facts and in the circumstances of the case, the Petition is allowed. Impugned order dated 20th December 2010 made by the learned Sub Judge-I, Kaimur, Bhabhua in pending Title Suit No.19 of 2005 is quashed and set aside. The application for appointment of Court Commissioner for survey of the disputed lands is allowed. The Court below will appoint a Court Commissioner for the survey of the suit lands. 7. The parties will bear their own cost.