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2004 DIGILAW 238 (AP)

V. Bikshapati Reddy v. V. Satyamma

2004-02-27

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) HEARD, Sri Prabhakar, learned Counsel representing the revision petitioners/respondent Nos. l to 4/plaintiffs and Sri Venkata Reddy, learned Counsel representing respondents/respondents 5 to 8. ( 2 ) THE question in controversy raised by both the parties in the present civil revision petition is no doubt simple, but, however, the said question is one of general importance. Several factual details had been narrated by both the learned Counsel regarding the historical background of this litigation, prior LGC No. 33 of 1994 and lgc No. 176 of 1995 and the findings recorded therein and even in relation to the identity of the property and the survey numbers in relation to which the findings had been recorded in the aforesaid LGC s, the subject-matter of the present suit and also in reference to Survey No. 310, which is not the subject-matter of the present suit. All the factual details may not be relevant for the present purpose. In IA No. 3603 of 2002 in O. S. Nol224 of 2002 on the file of the Principal Junior Civil Judge, hyderabad, East and North Ranga Reddy district, the following docket order was made:"during the course of arguments both the counsels have agreed for the proposal that an Advocate-Commissioner be appointed for survey the land in Sy. No. 310 and suit schedule property and to fix its boundaries. Already Assistant Director of Survey and land Records had surveyed the Sy. No. 310 and submitted his report before the Special court for Land Grabbing Cases. I feel it I proper that if the assistance of the Asst. Director is taken, it will be easier for fixing the boundaries. Therefore for this purpose sri Mahesh Kumar, Advocate is appointed. He is directed to take the help of Asst. Director, Survey and Land Records and initially he should measure Sy. No. 310 and suit survey numbers and fix the boundaries. He can take the help earlier report submitted asst. Director in fixing the boundaries to Sy. No. 310 and he is also directed to submit his report about the location of sy. No. 307, 308, 313 and 314 and also fix boundaries of those Sy. Nos. His fee is fixed at Rs. 1,500. 00 shall be paid direcdy by the petitioner. The fee of the Asst. Director shall be borne by both the parties equally. For report call on 15. 11. 2002. No. 307, 308, 313 and 314 and also fix boundaries of those Sy. Nos. His fee is fixed at Rs. 1,500. 00 shall be paid direcdy by the petitioner. The fee of the Asst. Director shall be borne by both the parties equally. For report call on 15. 11. 2002. " ( 3 ) THE warrant issued therein to the advocate Commissioner is as hereunder:"whereas it is deemed requisite for the purpose of this suit to appoint Advocate/ commissioner, Sri Mahesh Kumar, Advocate is appointed as Advocate/commissioner for this purpose. He is directed to visit the property i. e. , land admeasuring Ac. 4. 37 in sy. Nos. 307, 308, 313 and 314 (Sy. Nos. 307 ac. 1. 16 gts), 308 Ac. 0-16 gts. , 313 Ac. 0. 39 gts. And 314 Ac. 206 gts, and Sy. No. 310 adm. Ac. 2. 07 gts. , of Kakathiya Nagar, neredmet, Malkajgiri Mandal, measure and fix the boundaries of Sy. No. 310 and Suit sy. Nos. 307, 308, 313 and 314. He is also directed to take the help of Asst. Director, survey and Land Records in fixing boundaries of Sy. No. 310 and Suit schedule property. He is also directed to take the help of earlier report submitted by Assistant director in fixing the boundaries of Sy. No. 310 and suit schedule, Sy. Nos. 307, 308, 310, 313 and 314, and to fix the boundaries of sy. No. 310 and Suit schedule property. " ( 4 ) ON 14-10-2003, a memo was filed by the Advocate/commissioner, praying for clarification on the strength of the request made by Defendants 1 to 4 to earmark Sy. Nos. 310, 37, 38, 313, 314 with the assistance of the Original Village Map and the Assistant Director s report in LGC no. 176 of 1995. The operative portion of the said order reads as hereunder:"the Advocate Commissioner was appointed in this case for survey of the land in sy. No. 310 and to fix boundaries the Court in its order dated 24-10-2002 held that it is proper if the assistance of the Asst. Director is taken and to take the help of earlier report submitted by him. The earlier report of the asst. Director Survey and Land Records is only as spot inspection to find out whether the boundary stones have been fixed and planted demarcating Sy. No. 310 earlier are intact or not. Director is taken and to take the help of earlier report submitted by him. The earlier report of the asst. Director Survey and Land Records is only as spot inspection to find out whether the boundary stones have been fixed and planted demarcating Sy. No. 310 earlier are intact or not. In LGC 33 of 1994 the land in Sy. No. 310 is surveyed with the help of village map as the revenue tippons were not found in his report by the Advocate commissioner in LGC 176 of 1995 stated that he was appointed by the Advocate commissioner to inspect the land in sy. No. 310 and verify whether the boundary stones were intact or not. The report of the inspector of Survey which was prepared with the help of village plan till LGC 33 of 1994 is also referred to in his report. It is therefore appears that the village map/ plan was taken into, consideration for fixing the boundaries of the land in Sy. No. 310 at the earlier point of time. The report of the asst. Director survey of land and Records referred to in the Commissioner warrant is only a spot inspection report to find out whether the boundary stones that were erected were in tact or not. The report to fix the boundaries on the suit schedule property and the land in Sy. No. 310 the village map therefore appear to be the most relevant and the basic document with the help of which the boundaries of the land in sy. No. 310 was already fixed in LGC No. 33 of 1994. As already pointed out tippons of the land in Sy. No. 310 or not available in the revenue Department. In the circumstances of the case instead taking the help of report of the Asst. Director survey of land records referred to in the memo filed by the advocate Commissioner, it is appropriate to take the help of Village Map and fix the boundaries of the suit property and land in s. No. 310. The report of the Assistant director, Survey of Land Records is already available in LGC 176 of 1995. The various contentions raised by the learned Counsel for the plaintiff with regard to the finality of the judgment of the special Court under Land grabbing Prohibition Act. The report of the Assistant director, Survey of Land Records is already available in LGC 176 of 1995. The various contentions raised by the learned Counsel for the plaintiff with regard to the finality of the judgment of the special Court under Land grabbing Prohibition Act. , and its findings with regard to the possession of the land can be considered at appropriate stage. The Advocate Commissioner is therefore directed to fixed the boundaries of the suit property and the land in Sy. No. 310 so as to avoid confusion and submit his report expeditiously. If any of the parties to the suit do not co-operate for executing the warrant, he shall execute the warrant exparte after duly giving notice to them. " ( 5 ) THERE is no controversy between the parties that originally both the parties had given consent for appointment of the advocate/commissioner. Now the stand taken by the revision petitioners is that they had never given consent for either survey or for re-fixation in reference to the village map and it would definitely amount to deviation of the prior order, which was made on consent of the parties. Hence, this order cannot be sustained. The specific stand taken by the learned Counsel representing the respondents is that the question of survey of land and fixation cannot be thought of without the village map and in the present case, except the village map, no other acceptable record is available for this purpose. These aspects may be true or may not be true, te, this Court is not concerned with this aspect at this stage. The very appointment of the commissioner was made on consent of both the parties. When an order of consent was made by a Court, it can be altered only when the parties to the said order consent for any modification or deviation therefrom. Reliance was placed on the following decisions of the Supreme court reported in Suvaran Rajaram bandeker and others v. Narayana R. Bandekar and others, 1996 (10) SCC 225, kesar Devi v. Union of India, 2003 air SCW 3751 and also Jayalakshmi coelho v. Oswald Joseph Coelho, AIR 2001 SC 1084 . Reliance was placed on the following decisions of the Supreme court reported in Suvaran Rajaram bandeker and others v. Narayana R. Bandekar and others, 1996 (10) SCC 225, kesar Devi v. Union of India, 2003 air SCW 3751 and also Jayalakshmi coelho v. Oswald Joseph Coelho, AIR 2001 SC 1084 . ( 6 ) IN view of the facts and circumstances, this Court is of the considered opinion that the impugned order cannot be sustained and equally so, the consent orders on the strength of which the advocate Commissioner was appointed. Hence, in the interest of justice both the orders are hereby set aside. However, inasmuch as the parties are of the opinion that an application for appointment of commissioner may have to be decided on merits. Matter is remitted back to the court below to hear both the parties on all aspects and decide the matter afresh by passing appropriate orders in this regard, within a period of a fortnight from the date of the receipt of the order. ( 7 ) THE civil revision petition is accordingly allowed to the extent indicated above. No order as to costs.