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Andhra High Court · body

2009 DIGILAW 118 (AP)

S. Nagabhushanam v. S. Rosanna

2009-02-26

P.S.NARAYANA

body2009
Judgment : This Court ordered notice before admission on 18-11-2008 and granted interim stay for a limited period which was subsequently extended to a further limited period. 2. Sri S. Venkata Subba Rao, the learned Counsel representing respondent entered appearance. 3. Heard Sri J. Janaki Rami Reddy, the learned Counsel representing the Revision Petitioner and Sri S.Venkata Subba Rao, the learned Counsel representing the respondent. 4. The Civil Revision Petition is filed by the unsuccessful petitioner- plaintiff being aggrieved of an order made in I.A.No.163/2007 in I.A.No.212/2005 in O.S.No.100/2005 dt.14-8-2008 on the file of the Junior Civil Judge, Nandikotkur. The said application was filed by the petitioner under order XXVI Rules 9 and 10 read with Section 151 of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) praying the Court to re-direct the Commissioner to re-visit the plaint schedule property and measure the lands of the petitioner and respondent as per the registered sale deeds. The learned Junior Civil Judge, Nandikotkur, after recording reasons, came to the conclusion that there is no necessity to re-direct the Commissioner to localize the plaint schedule property as per the documents and accordingly dismissed the said application. Aggrieved by the same, the unsuccessful petitioner-plaintiff had preferred the present Civil Revision Petition under Article 227 of the Constitution of India. 5. The Civil Revision Petition is coming up for admission. 6. Sri Janaki Rami Reddy, the learned Counsel representing the Revision Petitioner would maintain that the Commissioner was appointed in I.A.No.212/2005 and in the facts and circumstances of the case the learned Judge totally erred in dismissing the application instead of directing the Commissioner to re-visit the plaint schedule property and measure the lands of the petitioner and respondent as well as per the sale deeds. The Counsel also would maintain that the Commissioner had not executed the warrant in proper perspective and in the light of the objections raised by the petitioner to the report of the Commissioner, the learned Judge could have allowed the application. The Counsel also would maintain that the learned Judge should have appreciated the fact that the Surveyor had not conducted the survey as per the F.M.Book submitted by the Mandal Surveyor. The Counsel also would maintain that the learned Judge should have appreciated the fact that the Surveyor had not conducted the survey as per the F.M.Book submitted by the Mandal Surveyor. The Counsel also pointed out to the relevant portions of the order under challenge and would maintain that in the facts and circumstances of the case the learned Judge totally erred in dismissing the application. 7. Per contra, Sri S.Venkata Subba Rao, the learned Counsel representing the respondent - defendant had taken this Court through the respective stands taken by the parties and also the reasons recorded by the learned Junior Civil Judge, Nandikotkur, and would maintain that it may be true that depending upon the facts and circumstances if the Court is satisfied that re-entrustment of warrant to the Commissioner may be essential for the purpose of elucidating certain aspects for effective and proper adjudication of the matters in controversy. Inasmuch as, the learned Junior Civil Judge, Nandikotkur, recorded proper reasons and ultimately came to the conclusion that this is not a fit case where such direction for re-entrustment of warrant of Commissioner would be necessary, such well-considered findings normally need no disturbance at the hands of this revisional Court and hence the Civil Revision Petition deserves dismissal. 8. Heard the Counsel and perused the material available on record. 9. The unsuccessful petitioner - plaintiff had preferred the present Civil Revision Petition under Article 227 of the Constitution of India as against an order made in I.A.No.163/2007 in I.A.No.212/2005 in O.S.No.100/2005 dt.14-8-2008 on the file of the Junior Civil Judge, Nandikotkur. The said application was filed under Order XXVI Rules 9 and 10 read with Section 151 of the Code praying the Court to re-direct the Commissioner to re-visit the plaint schedule property and measure the lands in the light of the sale deeds. 10. The Revision Petitioner - plaintiff filed the suit against respondent - defendant for permanent injunction restraining him from interfering with peaceful possession and enjoyment of the petition schedule land. The respondent-defendant filed I.A.No.212/2005 in O.S.No.100/2005 for appointment of Advocate-Commissioner to inspect the suit land and note the physical features existing in the land of the petitioner and the respondent. Accordingly, the Commissioner noted that there is no clear ridge separating the lands of the petitioner and respondent in I.A.No.212/2005 and sought for assistance of the Surveyor. The respondent-defendant filed I.A.No.212/2005 in O.S.No.100/2005 for appointment of Advocate-Commissioner to inspect the suit land and note the physical features existing in the land of the petitioner and the respondent. Accordingly, the Commissioner noted that there is no clear ridge separating the lands of the petitioner and respondent in I.A.No.212/2005 and sought for assistance of the Surveyor. Accordingly, the Deputy, Surveyor, Kurnool visited the suit locality and prepare sketch showing the lands of the respondent and the defendants as per their enjoyment. By the date of the execution of the commission, both parties have submitted work memos before the Commissioner. And the Commissioner after executing the commission filed the report according to the rough sketch prepared by the Surveyor. Now, the petitioner is filed his objections in the said Commissioner's report. Again, the petitioner filed this petition for dissatisfaction of the Commissioner's report to redirect the Commissioner to measure the petition schedule property as per their sale deeds with the assistance of the Surveyor. 11. The respondent - defendant filed counter stating that he filed I.A.No.112/2005 praying for appointment of the Commissioner to localize the suit schedule property. Accordingly, the learned Judge appointed a Commissioner to direct him to inspect and note down the physical features of the petition schedule property with the assistance of the District Surveyor, measure the lands of both parties. At the time of second inspection and survey with the assistance of District Surveyor, the Counsel representing the parties had submitted work memos. Thus, the Commissioner executed the warrant of commission in the light of the work memos and measured the lands of both the parties with the assistance of Surveyor and the Surveyor had given sketch to the Commissioner. Thus, the Commissioner filed his report along with the sketch. 12. The objections of the petitioner that the Surveyor had not done the survey according to the F.M.Book submitted by the Mandal Surveyor and the other further objections raised in this regard. The main grievance appears to be that the Surveyor had not measured the land of the petitioner and the land of the respondent as per the registered sale deed dt.15-6-84 and the Surveyor stated at the time of inspection that he cannot measure the lands as per the sale deeds but he can survey the land as per the enjoyment showing excess land. These aspects had been considered by the learned Judge at paras 4 and 5 of the Order under challenge in the Civil Revision Petition. It is not in controversy that when the Commissioner visited the plaint schedule property, both the parties were present and they filed work-memos. Though the petitioner also filed work memo, there was no specific request made to the Commissioner to measure the plaint schedule property or the land in question as per the sale deed. The Commissioner inspected the plaint schedule property on 18-6-2005 and had noted down the physical features and before inspection, the Commissioner had issued notices to the Counsel on record and the Counsel submitted their respective work memos. The learned Judge in fact had recorded clear reasons at para 6 and ultimately came to the conclusion that there is no necessity to re-direct the Commissioner to localize the plaint .schedule property as per the documents. 13. In Chennappa Gounder V. Narayan 2000 Aihc 3793 (Madras) it was held that where the parties had raised objections to the report of the Commissioner, the Court may call for supplementary report from the same Commissioner depending upon the facts and circumstances of a particular given case. 14. Order XXVI Rule 9 of the Code deals with the Commissions to make local investigations. Order XXVI Rule 10 of the Code deals with the Procedure of Commissioner. Order XXVI Rule 10(3) of the Code specifies that where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. 15. As already specified supra, in the light of the facts and circumstances of a particular given case, the Court may call upon the Commissioner by re-entrusting the warrant to further add or clarify certain of the aspects which may be highly essential for the purpose of resolving the questions in controversy. In the present case, the learned Junior Civil Judge, Nandikotkur, after recording the respective stands taken by the parties - the petitioner and respondent as well, recorded the objections at paras 4 and 5 and further recorded reasons in detail at para 6 and came to the conclusion that in the light of the objections filed to the report of the Commissioner, the petitioner has an opportunity to cross-examine the Commissioner with regard to his objections. It is also pertinent to note that it is not the case of the petitioner that the Warrant was not executed in accordance with either the warrant entrusted to him or in the light of the work memos submitted by the respective parties. When that being so, in the light of the convincing reasons recorded by the learned Junior Civil Judge, Nandikotkur, this Court is of the considered opinion that this is not a fit matter to be interfered with under Article 227 of the Constitution of India. 16. Accordingly, the Civil Revision Petition shall stand dismissed at the stage of admission. No order as to costs.