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2024 DIGILAW 751 (TS)

Mohamooda Begum v. Rajula Rajaiah

2024-09-13

K.LAKSHMAN

body2024
ORDER : 1. Heard Mr. Samala Ravendar, learned counsel representing Mr. Mirza Rizwan Ali Baig, learned counsel for the petitioner-plaintiff. 2. This revision is filed by the petitioner-plaintiff challenging the order dated 13.03.2019 passed by learned Principal Junior Civil Judge, Karimnagar in I.A. No. 89 of 2019 in I.A. No. 401 of 2017 in O.S. No. 85 of 2008 dismissing the application filed to appoint a Senior Advocate as Advocate Commissioner. 3. The petitioner-plaintiff filed a suit vide O.S. No. 85 of 2008 against the respondents-defendants for perpetual injunction in respect of suit schedule property i.e. open land admeasuring 651.66 square yards in Survey No. 1368, situated at Subashnagar Locality, Karimnagar Town. During pendency of the said suit, he has filed an Interlocutory Application vide I.A. No. 401 of 2017 to appoint an Advocate Commissioner to conduct survey and demarcate the land in Survey Nos.1359 and 1368 of Karimnagar Revenue Village with the help of Mandal Surveyor by GPS System, if require to take assistance of Assistant Director, Survey and Land Records. The same was allowed on 30.08.2017. Advocate Commissioner was appointed. He has executed warrant and filed first report on 23.10.2017 and another report on 07.06.2019. The petitioner has filed objections dated 17.06.2019 and additional objections dated 19.06.2019 to the said reports. Thereafter, the petitioner filed another Interlocutory Application vide I.A. No. 89 of 2019 under Section-151 of CPC to appoint a Senior Advocate as an Advocate Commissioner and direct him to take aid to maintain law and order in case if third parties interfere at the time of carrying out survey work, on the following grounds: (i) The Advocate Commissioner acted against the spirit of warrant. (ii) The Advocate Commissioner filed a false report stating that no boundary stones were found despite the Mandal Surveyor found the same. (iii) The action of Advocate Commissioner is biased, unilateral and colluded with respondents. 4. The aforesaid application was resisted by the respondents by filing counter contended as follows: (i) The Advocate Commissioner visited the site by issuing notices to both the parties and submitted his report. (iii) The action of Advocate Commissioner is biased, unilateral and colluded with respondents. 4. The aforesaid application was resisted by the respondents by filing counter contended as follows: (i) The Advocate Commissioner visited the site by issuing notices to both the parties and submitted his report. (ii) The petitioner is creating troubles and went on filing petitions one after the other i.e. I.A. No. 352 of 2018 filed to replace the Mandal Surveyor with the Assistant Director of Survey and Land Records; I.A. No. 531 of 2018 to modify the order in I.A. No. 401 of 2017 to replace the Advocate Commissioner by appointing another advocate without proper reason; I.A. No. 675 of 2018 to seek a direction to follow the orders to take help of the Mandal Surveyor and the police to maintain law and order, and the said petitions were dismissed on 26.10.2018, 26.10.2018 and 24.12.2018, respectively; (iii) There is sufficient evidence to decide the disputed questions involved in the suit. (iv) An Advocate Commissioner was appointed in O.S. No. 1 of 2009 on the file of Additional Junior Civil Judge, Karimnagar to demarcate the lands in Survey Nos. 1359 and 1368 and the Advocate Commissioner executed the warrant with the help of the Assistant Director of Land and Survey and reported that the plot therein is part of Survey No. 1359. The plot in the said suit is towards further east to the present boundary show. 5. Vide impugned order dated 13.03.2019, learned Principal Junior Civil Judge, Karimnagar, dismissed the said application holding as follows: (i) A similar petition was filed vide I.A. No. 531 of 2018 and the same was dismissed. (ii) Pursuant to the orders dated 30.08.2017 in I.A. No. 401 of 2017, an Advocate Commissioner was appointed. He did not file report and the order was modified thereby directing the Advocate Commissioner to adapt GPS System. Later, both the parties did not evince any interest to see that the warrant is executed so as to enable the Advocate Commissioner to file his report by extending co-operation to him. (iii) It is well settled law that unless a report is filed by appointed Advocate Commissioner duly executing the warrant as ordered by the Court and objections filed by both the parties are considered, the Court cannot appoint another advocate Commissioner for the same purpose. 6. Mr. (iii) It is well settled law that unless a report is filed by appointed Advocate Commissioner duly executing the warrant as ordered by the Court and objections filed by both the parties are considered, the Court cannot appoint another advocate Commissioner for the same purpose. 6. Mr. Samala Ravendar, learned counsel for the petitioner, would submit that the Advocate Commissioner did not execute the warrant properly and did not conduct survey with the help of Mandal Surveyor as directed by the trial Court. Therefore, the petitioner has submitted objections dated 17.06.2019 and additional objections dated 19.06.2019 to the said reports dated 23.10.2017 and 07.06.2019, respectively. The same were not considered. Therefore, the petitioner has filed I.A. No. 89 of 2019 to appoint a Senior Advocate as Advocate Commissioner to conduct survey and demarcate the suit schedule property with the help of Mandal Surveyor. The same was dismissed vide impugned order dated 13.03.2019 without considering the contentions raised by the petitioner that the first Advocate Commissioner did not conduct survey as per the warrant issued by the trial Court and did not consider the objections submitted by the petitioner. The said aspects were specifically mentioned in the affidavit filed in support of I.A. No. 89 of 2019. Therefore, the trial Court erroneously dismissed I.A. No. 89 of 2019 vide impugned order dated 13.03.2019. 7. Perusal of record would reveal that the petitioner-plaintiff has filed the aforesaid suit in the year 2008. During pendency of the said suit, he filed an Interlocutory Application vide I.A. No. 401 of 2017 in O.S. No. 85 of 2008 under Order-26, Rule-9 read with 151 of C.P.C. to appoint Advocate Commissioner to conduct survey and demarcate the suit schedule property by fixing boundaries. The said petition was allowed on 30.08.2017. He has executed the warrant on 07.06.2019 by submitting two reports dated 23.10.2017 and 07.06.2019. The petitioner has submitted objections dated 17.06.2019 and additional objections dated 19.06.2019 to the said reports dated 23.10.2017 and 07.06.2019, respectively. Thereafter, he has filed the aforesaid I.A. No. 89 of 2019 to appoint a Senior Advocate as Advocate Commissioner on the aforesaid grounds. The said application was dismissed on 13.03.2019. The petitioner filed the present revision only on 09.09.2024. There is no explanation, much less plausible explanation from the petitioner with regard to the delay caused for more than 4½ years in filing the present revision. 8. Mr. The said application was dismissed on 13.03.2019. The petitioner filed the present revision only on 09.09.2024. There is no explanation, much less plausible explanation from the petitioner with regard to the delay caused for more than 4½ years in filing the present revision. 8. Mr. Samala Ravendar, learned counsel, would contend that learned counsel appearing for the petitioner-plaintiff before the trial Court died on 07.09.2020. Thereafter the petitioner engaged new counsel. Due to the said reasons, he could not file the revision immediately. The said explanation offered by the petitioner is not satisfactory. 9. As discussed above, the said application was dismissed on 13.03.2019 and the petitioner filed the present revision only on 09.09.2024. The suit is of the year 2008. Moreover, the petitioner filed the present I.A. No. 89 of 2019 contending that the first advocate commissioner did not conduct survey as per the warrant issued by the trial Court. The respondents herein vehemently opposed to adapt the GPS system but, however, after issuing redirection, the advocate commissioner never tried to survey the lands in both the survey numbers in the spirit of warrant and redirection due to which the very purpose of issuing the advocate commissioner has been collapsed. In paragraph No. 4 of the objections dated 17.06.2019 submitted by learned counsel for the petitioner, it is specifically mentioned that the alleged GPS system said to have been used has not been shown by the Assistant Director of Survey and Land Records at any point of time to the petitioner or his counsel to show reference point in the beginning or to show the directions of Survey No. 1359 or 1368 at least. There are no visible boundary stones and the reference point in the beginning was decided without referring to Village Map. Thus, the Advocate Commissioner’s report is evasive and silent on the aspect of situation of suit land as the Assistant Director of Survey and Land Records measured the excess land than comprised in Survey No. 1359 and included the suit land in his measurement as though part and parcel of Survey No. 1359. 10. In the additional objections, dated 19.06.2019 filed by the petitioner, it is mentioned that the Surveyor appointed by the trial Court has done nothing on the field at the time of demarcation of the suit land in Survey Nos. 1359 and 1368, nor the Mandal Surveyor has prepared the panchanama. 10. In the additional objections, dated 19.06.2019 filed by the petitioner, it is mentioned that the Surveyor appointed by the trial Court has done nothing on the field at the time of demarcation of the suit land in Survey Nos. 1359 and 1368, nor the Mandal Surveyor has prepared the panchanama. The report of the Advocate Commissioner is indifferent one compare to the panchanama dated 29.05.2019 and to the letter in favour of the Advocate Commissioner issued by the Assistant Director of Survey and Land Records dated 04.06.2019. Therefore, the grounds on which the petitioner filed I.A. No. 89 of 2019 are different to the objections filed by him to the advocate commissioner’s report. If the Advocate Commissioner appointed by the trial Court did not conduct survey as per the warrant issued by the trial Court, the petitioner can examine/cross-examine him and made his submissions on the said aspects. Instead of doing so, he has filed second application seeking appointment of a Senior Advocate as Second Advocate Commissioner. Therefore, on the said grounds, the petitioner cannot seek appointment of second advocate commissioner/senior advocate. Considering the said aspects only, the trial Court dismissed the said I.A. No. 89 of 2019 on 13.03.2019. It is a reasoned order and well founded and it does not require interference by this Court. There is no judicial error. Therefore, the present revision fails and is liable to be dismissed. 11. The present Civil Revision Petition is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs. 12. As a sequel thereto, miscellaneous petitions, if any, pending in this revision shall stand closed.