Telangana High Court
Pasunuri Satyanarayana vs Md. Waheed on 4 July, 2023
Author: Surepalli Nanda
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
C.R.P.NO.2688 OF 2022
Between:
P.Satyanarayana
... Petitioner
And
Md. Waheed and others
... Respondents
JUDGMENT PRONOUNCED ON: 04.07.2023
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
_________________
SUREPALLI NANDA, J
SN,J
2 CRP_2688_2022
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
C.R.P.NO.2688 OF 2022
% 04.07.2023
Between:
# P.Satyanarayana
..... Petitioner
And
$ Md. Waheed and others
.....Respondents
< Gist:
> Head Note:
! Counsel for the Petitioners : Sri J.Venkateshwar Reddy
^ Counsel for the Respondents: Sri Ashok Reddy Kanathala
? Cases Referred:
1. 2006(4) ALT 23 (S.B)
2. 1996 SCC online AP 753
SN,J
3 CRP_2688_2022
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
C.R.P.NO.2688 OF 2022
ORDER:
Heard learned counsel for the petitioner and learned counsel for the respondents.
2. For the sake of convenience the parties are referred to as they are arrayed in the suit before the lower Court.
3. This civil revision petition is filed challenging the propriety and legality of the order dated 26.07.2022 passed in I.A.No.129 of 2022 in O.S.No.102 of 2013 on the file of the Principal District Judge at Jangaon.
4. The plaintiffs filed I.A.No.129 of 2022 in O.S.No.102 of 2013 under Order 26 Rule 9 read with Section 151 C.P.C. seeking appointment of Advocate Commissioner to measure the lands in Survey Nos. 562 and 560 of Palakurthy Village and fix their boundaries with the help of Tippons and Village Map on the spot to enable the Court to come to a conclusion in respect of the location of the lands of the respective parties.
SN,J 4 CRP_2688_2022
5. The plea of the petitioner/plaintiff is that he filed a suit for declaration of his title to the suit land measuring Ac.2.14 gts in Survey No.562, but according to the defendants the suit land is part and parcel of Survey Nos.560 and 562, but not Survey No.562 alone and the petitioner's land and the land of respondents/defendants are situated adjacent to each other and there are no boundary stones on the spot and so fixation of boundaries for Survey No.562 and 560 is necessary to know whether their lands are situated in Survey No.562 or 560 and that such survey of the lands of both the survey numbers by the Assistant Director of Survey and land records with the help of Tippons is necessary to enable the Courts to decide the matter in issue.
The respondents/defendants filed counter strongly opposing the plea of the petitioner for appointment of Advocate Commissioner and contending that an Advocate Commissioner was appointed in I.A.No.285 of 2013 in O.S.No.211 of 2005 by the Court of Additional Junior Civil Judge at Jangaon for demarcation of the lands in Survey No.560 and 562 of Palakurthy Village with the assistance of the Assistant Director of Survey and Land Records, Janagon SN,J 5 CRP_2688_2022 and the Commissioner filed report on 09.08.2019 and so there are no bonafides in the petitioner filing the present petition and hence, it is liable to be dismissed. PERUSED THE RECORD:
6. The petitioner/plaintiff filed the suit for declaration of his title and for recovery of possession of 462 sq. yards with compound wall and shed situated in Survey No.562/A as shown in plaint 'A' schedule and also for declaration of title, perpetual injunction and mesne profits in respect of Ac.0.12 Gts in Survey No.562/A as shown in the plaint 'B' schedule.
7. The allegation of the plaintiff as can be seen from para 2 of the plaint is that defendant No.1 in the absence of the plaintiff from the village, illegally occupied the plaint 'A' schedule property which is situated in the middle of Survey No.562/A and constructed a poultry shed on the land and compound wall in the year 2005 after obtaining permission from the Gram Panchayat stating that the land is part and parcel of Survey No.560/A.
8. The plaintiff in para 3 of the plaint stated that the 1st defendant filed O.S.No.211 of 2005 for perpetual injunction in SN,J 6 CRP_2688_2022 respect of Ac.0.8 gts of land contending that it is situated in Survey No.560 and obtained temporary injunction against him from the Court of Junior Civil Judge, Janagon.
9. The 1st defendant along with a Memo filed the report of the Advocate Commissioner and also the warrant of appointment in I.A.No.285 of 2013 in O.S.No.211 of 2005 on the file of Additional Junior Civil Judge at Jangaon. Undisputedly, the plaint 'A' schedule land is the same land which is in dispute in O.S.No.211 of 2005 in respect of which Advocate Commissioner was appointed and the Advocate Commissioner filed his report.
10. The plaintiff herein suppressed the fact that a Commissioner was already appointed in an earlier suit apparently for the reason that the report is not favourable to him though the Commissioner was appointed in the earlier suit, in view of the fact that the land in respect of which the Commissioner made inspection and after survey filed the report, is the same land now in dispute i.e. the plaint 'A' schedule property, SN,J 7 CRP_2688_2022 the petitioner/plaintiff has to explain as to how and why the report is not acceptable to him. But the plaintiff made suppression of that report in the plaint leave alone giving reasons for not accepting that report. This apart, the petitioner seeks survey of entire land in both the survey numbers, whereas the land claimed by the plaintiff is 468 sq. yards in Survey No.562 while the claim of the 1st defendant is for eight (8) cents in Survey No.560 when the rival claims pertain to small extent in Survey Nos.562 and 560 the petitioner seeks fixation of boundaries in entire land in Survey Nos.560 and 562.
11. In a judgment dated 06.03.2006 passed in C.R.P.No.1573 of 2005 reported in 2006(4) ALT 23 (S.B) in Seepally Thirupathi and others v Repelli Mallikarjun and others, in particular, para 10 reads as under:
"10. It is pertinent to note that merely because scientific enquiry had been referred to, it cannot be said that under the guise of those provisions, when already a report of Commissioner is available on record, the learned SN,J 8 CRP_2688_2022 Judge without recording any reasons, expressing either the deficiency or otherwise relating to the said report, cannot appoint yet another Commissioner. Hence, in this view of the matter, the learned Judge had not committed any illegality whatsoever in dismissing the application."
12. In a judgment dated 06.03.2006 reported in 2006(4) ALT 23 in Seepally Thirupathi and others v Repelli Mallikarjun and others, in particular, para 10 reads as under:
"10. It is pertinent to note that merely because scientific enquiry had been referred to, it cannot be said that under the guise of those provisions, when already a report of Commissioner is available on record, the learned Judge without recording any reasons, expressing either the deficiency or otherwise relating to the said report, cannot appoint yet another Commissioner. Hence, in this view of the matter, the learned Judge had not committed any illegality whatsoever in dismissing the application."
13. In a judgment reported in 1996 SCC online AP 753 in Kushal Rao v Shyam Rao and another, in particular, the relevant portion of para 7 reads as under:
SN,J 9 CRP_2688_2022 "The law in regard to the appointment of more than one Commissioner by virtue of Order XXVI Rule 10 of the Code is no longer res integra and has been settled by precedents, including the precedents of this Court. As a normal rule, there is no doubt that two separate commissions should not be issued to deal with one and the same subject and to treat the , report of both the Commissioners as evidence in the case.
It is only when the report of the first Commissioner is unsatisfactory and the Court is dissatisfied with his proceedings, that a second Commissioner could be appointed under the provisions of Order XXVI Rule 10 Sub-clause (3). If a second Commissioner is appointed either by rejecting the report of the first Commissioner or Without that, the legal effect is that the report of the first Commissioner may be wiped out in law.
14. In view of the above, what emerges is that earlier in suit O.S.No.211 of 2005 filed by the 1st respondent herein in I.A.No.285 of 2013 for appointment of Advocate Commissioner for demarcating Survey Nos.560 and 562 of Palakurthy Village, the said I.A.No.285 of 2013 was allowed and Advocate Commissioner was appointed. The Advocate Commissioner had filed report on 09.08.2019. The Inspector SN,J 10 CRP_2688_2022 of Survey (cum) Assistant Director, Survey and Land Records, Jangaon filed report on 15.07.2019 vide Rc.Lr.No.A1/56/2019 along with panchanama.
15. This Court opines that the judgments relied upon by the learned counsel for the petitioner do not apply to the facts of the present case and there is no illegality in the order dated 26.07.2022 passed in I.A.No.129 of 2022 in O.S.No.102 of 2013 on the file of the Principal District Judge at Jangaon.
16. In view of the above facts and circumstances of the case and duly considering the view of the Court in its judgment dated 06.03.2006 passed in C.R.P.No.1573 of 2005 reported in 2006(4) ALT 23 in Seepally Thirupathi and others v Repelli Mallikarjun and others and also the view taken by the Court in its judgment dated 10.10.1996 passed in C.R.P.No.3406 of 1996 reported in 1996 SCC on line AP 753 in Kushal Rao v Shyam Rao and another, this Court opines that the petitioner is not entitled for the relief as prayed and hence, the Civil SN,J 11 CRP_2688_2022 Revision Petition is dismissed. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_________________ SUREPALLI NANDA, J Date: 04.07.2023 Note : L.R. copy to be marked b/o Kvrm