CRP/5462/2011 of Budiga Talari Seshamma, Vs Jalal (Gujula)Mahammad Ismail, on 30 December 2011

ORDER:-

This revision has been directed against the order dated 21-9-2011 passed in I.A.No.528 of 2011 in O.S.No.460 of 2008 on the file ofthe Principal Junior Civil Judge, Dhone, whereby and whereunder thelearned Judge dismissed the petition filed by the defendants underOrder XXVI Rule 9 read with 151 of C.P.C. seeking appointment of theMandal Surveyor to inspect/survey the suit schedule land.

The respondents are the plaintiffs in O.S.No.460 of 2008. Theyfiled the suit for perpetual injunction in respect of Ac.3.23 centscomprising Sy.No.103 bounded by East:- Land of Yamasani VengalaReddy, West:- Rastha, North:- Land of defendants and South:- Land ofAkula Chinna Pullaiah. The defendants entered appearance and filedwritten statement resisting the relief sought for by the plaintiffs. Theypleaded in the written statement that the 1[st] defendant has right,possession and enjoyment in respect of Ac.5.40 cents comprisingSy.No.104 and the plaint schedule ‘CDEF’ is falling within Sy.No.104, over which the plaintiffs neither have title nor possession. The plaintiffsfiled I.A.No.722 of 2008 under Order XXVI Rule 9 read with Section151 of C.P.C. seeking appointment of an Advocate-Commissioner toinspect the suit schedule land. Learned Principal Junior Civil Judgeallowed the said application and appointed the Advocate-Commissioner as well as the Mandal Surveyor. The relevant portionof the Order reads as hereunder:- “Heard both sides. The Counsel for respondentsreported that this petition may be allowed on condition thatthe Mandal Surveyor to be appointed along withCommissioner. Hence, this petition is allowed. Sri C.Rafiqis appointed as Advocate Commissioner and his fee is fixedat Rs.2,000/- and on request Mandal Surveyor concerned isappointed to survey the land filed his report his fee is fixedRs.1,000/- for filing report call on 14-6-2011.”

It appears that the order dated 5-5-2011 passed in I.A.No.722 of 2008 has been modified by the learned Principal Junior Civil Judge andpursuant to the modified order, the Advocate-Commissioner inspectedthe suit schedule land on 30-10-2011 and filed his report. While so,the defendants filed I.A.No.528 of 2011 under Order XXVI Rule 9 readwith Section 151 of C.P.C. seeking appointment of Mandal Surveyor toinspect/survey the suit land with reference to the Survey Number andextent. The plaintiffs filed counter opposing the prayer sought for in thepetition. The learned Principal Junior Civil Judge, on considering thematerial brought on record and on hearing the learned Counselappearing for the parties, proceeded to dismiss the application byorder dated 21-9-2011. Hence, this petition.

Heard Sri C.Prakash Reddy, learned Counsel appearing for thepetitioners.

Learned Counsel appearing for the petitioners submits that theCommissioner who inspected the suit schedule land ought to have taken the assistance of the Mandal Surveyor while executing thewarrant entrusted to him to make it clear as to whether the disputedland falls in Sy.No.103 or Sy.No.104. A further submission has beenmade that the petitioners/defendants are not claiming any right overthe land bearing Sy.No.103 and likewise the respondents-plaintiffs arealso not claiming the land in Sy.No.104.

Arguments

The dispute is in which of the two numbers, the suit scheduleland falls i.e., either in Sy.No.103 or Sy.No.104. As can be seen fromthe material brought on record, the Commissioner appointed pursuantto the order 5-5-2011 has executed the warrant and filed his report. The petitioners/defendants must have filed their objections to theCommissioner’s report. Unless the earlier Commissioner report isdiscarded, the question of appointing the second Commissioner toinspect the suit schedule land does not arise. In that view of thematter, I am not inclined to interfere with the order impugned in therevision. However, if the petitioners/defendants have not placed theirobjections to the Commissioner’s report, they are at liberty to place onrecord their objections within a period of two weeks. In the event of thepetitioners/defendants placing on record their objections within thetime specified supra, the learned Principal Junior Civil Judge has toconsider the objections to the Commissioner’s report before acceptingthe same and proceeding with the trial.

Subject to the above observations, this revision petition isdisposed of at the admission stage itself. No order as to costs.

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B.Seshasayana Reddy, J

30[th] December, 2011

NOTE:- Registry is directed to furnish the order Copy by 03-01-2012.

(B/o.smr)