Andhra HC (Pre-Telangana)
D. Vidya Sagar Rao And Anr. vs K. Indira Devi And Ors. on 30 January, 2004
Equivalent citations: 2004(2)ALD426, 2004(2)ALT689
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER N.V. Ramana, J.
1. The plaintiffs are the respondents and the defendants the petitioners. The parties shall be referred to by the status in the suit.
Pleadings in brief as disclosed by record
2. The pleadings on record disclose that the plaintiffs and the defendants are claiming to be owning an extent of Acs.4-10 guntas and Acs.10-00 of land in Sy. Nos. 484, 485 and 486 of Bachupally Village, Ranga Reddy District. While the claim of the plaintiffs is based on the sale deed of the year 1967, while that of the defendants, is based on the sale deeds from the year 1993 and onwards. It appears that when the defendants tried to interfere with the possession of the plaintiffs, the plaintiffs filed the suit O.S. No. 239 of 2000 on the file of the Principal Senior Civil Judge, Ranga Reddy District, praying to grant permanent injunction restraining the defendants, from interfering with their extent of land. While the suit is pending, the plaintiffs moved an application in I.A. No. 2089 of 2001 under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 praying to appoint a Surveyor, contending that there are boundary disputes between the plaintiffs and the defendants, and for settlement thereof, it is necessary that a Surveyor should be appointed. The defendants resisted the application. However, the Court below, by reason of the order impugned in this CRP allowed the application.
Rival submissions made at the Bar
3. The learned Counsel for the petitioners-defendants submitted that the present application filed by the respondents-plaintiffs for appoint of Surveyor to demarcate the boundaries is not maintainable having regard to the fact that the application I.A. No. 473 of 2000 filed by the plaintiffs for the very same relief on an earlier occasion, which was allowed by the Trial Court, was subsequently set aside in revision by this Court in CRP No. 3715 of 2000 by its order dated 12-12-2000, and therefore, the said order operates as res judicata in respect of the present application. The learned Counsel for the petitioners-defendants in support of his contention that the order of this Court in CRP No. 3715 of 2000 dated 12-12-2000, having become final between the parties, the present application in respect of the very same relief, would be barred and the doctrine of res judicata would squarely apply, placed strong reliance on the judgments of the Apex Court in Satyadhyan v. Smt. Deorajin Debi, , Y.B. Patil v. Y.L. Patil, AIR 1977 SC 392, Prahlad Singh v. Sukhdev Singh, , and Dhanwanti Joshi v. Madhav Unde, , and the judgments of various High Courts in Punjab and Sind Bank v. Manjit Properties Private Limited, , Narain Das v. II Addl. District Judge, Moradabad, AIR 1999 All. 74, and Nitya Nanda Ghosh v. Alo Rani Ghosh, AIR 2000 Cal. 89.
4. The learned Counsel for the petitioners-defendants submits that the respondents-plaintiffs do not own any property in the survey numbers in question. The boundaries given by the plaintiffs are incorrect and their claim in respect of the property is not supported by any documents. According to him, the disputes between the parties are not with respect to boundaries or identification of the property, but are one with respect to rival claim of title and possession in the same survey numbers, which cannot be decided unless evidence is let in, and if the impugned order passed by the Court below appointing a Surveyor to demarcate the boundaries is allowed to be sustained, it would amount to delegating the power of the Court to the Surveyor to interpret the documents, collect evidence on behalf a party and give a finding on the question as to who is in possession of the property, which cannot be permitted. To sustain this argument, the learned Counsel placed reliance on the judgments of various High Courts in Basanta Kumar v. Baidya Kumar, , Puttappa v. Ramappa, , Union of India v. Kripal Industries, and Bongu Ramulu and Anr. v. Gudur Narender Reddy, .
5. The learned Counsel for the petitioners-defendants contended that the warrant issued to the Surveyor to undertake the survey job has travelled beyond the scope of the impugned order. He submits that though the impugned order merely states that the application is allowed and does not make any directions to the Surveyor with respect to surveying of the property, the warrant issued to the Surveyor contains certain directions, which do not find a mention in the impugned order, and therefore, the same cannot be sustained.
6. Per contra, the learned Counsel for the respondents-plaintiffs refuting the submissions of the petitioners-defendants contended that the present application filed by the plaintiffs seeking appointment of Surveyor to demarcate the boundaries, is not barred by the doctrine of res judicata having regard to the fact that this Court while allowing the revision and setting aside the order of the Court below appointing Surveyor to demarcate the boundaries, did not decide the same on merits, but has merely allowed the revision on the ground that the application for appointment of Surveyor was premature as no written statement was filed in the suit and that the application for appointment of Surveyor may be filed at an appropriate time. In support of this submission, he placed reliance on the judgments of the Apex Court in Sheodan Singh v. Daryao Kunwar, and N. Annappa v. State of Karnataka and Anr., 1999 (9) Supreme 502, and the judgment of this Court in Anirudha v. Amarendra, . At any rate, the learned Counsel placing reliance on the judgments of the Privy Council in Jagadish Chandra Deo v, Gour Hari Mahato, AIR 1936 PC 258 and Suryya v. Bala Gangadhara, AIR (35) 1948 PC 3, contended that the plea of res judicata having not been urged before the Court below, the defendants cannot be allowed to urge for the first time before this Court in revision.
7. The learned Counsel for the respondents-plaintiffs contended that inasmuch as the defendants themselves had in their counter-affidavit filed along with the application to set aside the ex parte interim injunction, admitted that the land claimed by the plaintiffs is very much available in the survey numbers in question as against their khata in the revenue records, no prejudice would be caused to the defendants if a Surveyor is appointed to survey the entire land in the survey numbers and demarcate the boundaries and more particularly when the Collector, Survey and Land Records, had at the request of the defendants though by proceedings dated 23-4-1999 issued notice to all concerned as regards conduct of demarcation, for the reasons best known to the defendants, they did not co-operate with the Surveyor for demarcation of the land. At any rate, the learned Counsel that the disputes between the parties being only with respect to demarcation of boundaries and measurement of the land held by each of the parties, which does not involve the exercise of interpretation of documents, collecting of evidence etc., the Court below had rightly appointed Surveyor to demarcate the boundaries, more particularly to ensure effective adjudication of the issue. In support of this submission, he placed reliance on the judgments of various High Courts in Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam, , Confederation of A.P. Consumer Organisation v. Government ofA.P., 1997 (5) ALD 430 and Kuttappan v. Sarojini Bhaskaran, .
8. The learned Counsel for the respondents-plaintiffs submitted that when the Court below had merely allowed the application, it should be deemed that it has allowed the prayer made in the said application. Therefore, the warrant issued to the Surveyor containing the details of the survey to be conducted by him, cannot be treated as the warrant traveling beyond the scope of the impugned order, and thus sought to sustain the impugned order as well as the warrant drawn in terms therewith.
9. Heard the learned Counsel for the petitioners and the learned Counsel for the respondents.
Supervisory jurisdiction under Article 227 of the Constitution of India
10. Before proceeding to examine the various contentions advanced by the learned Counsel for the petitioners-defendants in support of the revision petition, it would be apposite to consider the power and scope of this Court to interfere with the order under revision in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, which is discretionary in nature. As is well settled, the High Court exercises its supervisory jurisdiction under Article 227 of the Constitution of India, to keep the Subordinate Courts and tribunals within the bounds of their jurisdiction. It would interfere if the subordinate Court or tribunal had assumed a jurisdiction which it does not have or has failed to exercise the jurisdiction vested in it or has exercised the jurisdiction available in it in a manner not permitted by law, resulting in grave injustice or failure of justice.
11. The Apex Court in State Thr. Special Cell, New Delhi v. Navjot Sandhu, 2003 (2) ALD (Crl.) 109 (SC) = 2003 (4) Supreme 133, examined the power of the High Court to interfere with an order of the subordinate Court or subordinate tribunal in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, in the light of several decision, and stated the law thus:
Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all the Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunal's within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep the subordinate Courts and Tribunal's within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal in disguise".
12. The Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 (5) ALD 36 (SC) = 2003 (5) Supreme 390, laid down the law with respect to supervisory jurisdiction of this Court under Article 227 of the Constitution of India in the following manner:
Article 227 of the Constitution confers on every High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any Court or tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power the High Court has been conferred with certain specific powers by Sub-articles (2) and (3) of Article 227 with which we are not concerned hereat. It is well settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power of the High Court under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar.
13. In the light of the law laid down by the Apex Court with respect to the supervisory jurisdiction of this Court under Article 227 of the Constitution, I shall now proceed to consider whether the Court below by appointing a Surveyor, has assumed a jurisdiction not vested in it or has exercised the jurisdiction in a manner not permitted by law, resulting in grave injustice and failure of justice, to the petitioners with reference to each of the contentions advanced on their behalf.
Doctrine of Res Judicata
14. The contention of the petitioners-defendants that the present application filed by the plaintiffs seeking appointment of Surveyor is not maintainable, having regard to the fact that on an earlier occasion, this Court in CRP No. 3715 of 2000, vide its order dated 12-12-2000, allowed the revision, setting aside the order passed by the Court below appointing a Surveyor in the application IA No. 473 of 2000, and therefore, the same would operate as res judicata, is not well founded.
15. The doctrine of res judicata, as is well known, is based on common law principles and is founded on the rule that decisions either in a suit or a proceeding whether on a question of fact or a question of law, which have attained finality between two parties, either because no appeal has been preferred to a higher Court or because the appeal preferred was dismissed or there was no provision of appeal, then the parties to such suit or proceedings, will not be allowed to canvass the very same issue once again in a future suit or proceeding.
16. As early as in 1960, the Apex Court in Satyadhyan v. Smt Deorajin Debi, while considering the question of applicability of the principle of res judicata in the case before it, held thus:
The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law -has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct.
The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the Trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.
17. The view stated in the above case to the effect that an order made in the course of a proceeding which has attained finality, is binding in subsequent proceedings, between the parties to the said litigation, has been and is being consistently followed by the Apex Court as well as High Courts in respect of the res between the same parties. In that view of the matter, there can be no dispute about the law laid down in the decisions cited and reliance placed thereon by the learned Counsel for the petitioners-defendants in support of his plea of res judicata.
18. It may be noticed whether the order dated 12-12-2000 made by this Court in CRP No. 3715 of 2000, whereby the order of the Court below appointing a Surveyor to demarcate the lands, was set aside, would operate as res judicata, precluding the plaintiffs from filing the present application. It is well settled that the question of res judicata has to be specifically pleaded and that it is not open to the party to canvas the plea of res judicata before the High Court for the first time when it was not raised before the trial Court (See Jagadish Chandra Deo v. Gour Hari Mahato, AIR 1936 PC 258 and Suryya v. Bala Gangadhara). In the instant case, the defendants have not taken the plea of res judicata before the Court below, and it is only for the first time, an argument was advanced before this Court, though not pleaded in the grounds of revision, that in view of the order of this Court in CRP No. 3715 of 2000, dated 12-12-2000, the present application filed for the very same relief of appointment of Surveyor, is hit by the doctrine of res judicata, and therefore, barred. In order to satisfy whether or not the present application is hit by the doctrine of res judicata, it may be noticed under what circumstances, the Court below allowed the CRP setting aside the order passed by the Court below appointing Surveyor. In this context, it would be appropriate to extract the following observations, made by this Court in CRP No. 3715 of 2000, vide order dated 12-12-2000:
It is quite surprising to note that the plaintiffs sought survey along with the filing of the suit itself even without waiting for the defendants' pleading by way of written statement or knowledge of their case. As per the provisions under Order 26, Rule 9 of CPC, any local inspection has to be done where it is requisite or proper for the purpose of elucidating any matter in dispute. A dispute can be spelt out only where both the parties submit their pleadings. Further, such applications can properly be appreciated only after commencement of trial, more so in this case, where the plaintiffs came out with a version as to purchase of undivided portion, which was sought to be changed into one of a divided share with further addition of specified boundaries with the amendment of the plaint. These are all questions, which have to be established by proper evidence on either side. Though it cannot be said under law that no such application need be entertained without evidence on record, however, each case requires to be paid attention from its own facts and circumstances. Further, whether the mere relief of injunction as sought for is sufficient enough to grant or it requires any further comprehensive reliefs are again matters, which crop up for consideration in the main suit. Therefore, in the nature of things in this case, the application for survey by local inspection is premature and wholly unsustainable at this stage. As regards the amendment, the Court below has already exercised its discretion by allowing the same. Further where a party himself is attempting to be more specific in his case, it would be easier for the other party to meet the case and ultimately enables the Court to come to correct conclusions.
19. A reading of the above observations, would make it clear that the C.R.P. was not decided on merits and the order passed by the Court below appointing Commissioner to make local inspection, was not sustained not because it suffered from any legal infirmities, but because the application for appointment of Surveyor was made at a premature stage, in that the application was moved simultaneously along with the suit, and it was allowed even before the defendants could put forth their case by way of written statements. Inasmuch as the earlier application filed for appointment of Surveyor for conducting survey by local inspection, was dismissed not on merits, but on the ground that it was premature, it cannot be said that the said order had decided a res between the parties so as to bind them and operate as res judicata precluding the plaintiffs from making the present application. The present application was moved by the plaintiffs after the defendants filed their written statement in the suit and after the parties had adduced their evidence in support of their respective cases. When this Court by its order dismissed the earlier application stating that it was premature at this stage, what it was the application was untimely and inopportune and left it open for filing at an appropriate time, and therefore, it cannot be said that the said decision had barred or precluded the plaintiffs from making or renewing their request for appointment of Surveyor in another application, having regard to the changed circumstances, namely filing of written statement by the defendants and adducing of evidence on either side. As this Court had not rendered any decision either on questions of facts or questions of law, the said order does not come in the way of the plaintiffs from maintaining the present application. The said order, by no stretch of imagination, can be said to have made a decision negativing the plea of the plaintiffs for appointment of a Surveyor to make local inspection once and for all, making it a binding precedent between the parties in respect of the litigation. In this context, it would be appropriate to refer to the decision of the Apex Court in Sheodan Singh v. Daryao Kunwar, wherein it was held:
In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the Trial Court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court-fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit.
20. In the above view of the matter, and having regard to the judgment of the Apex Court wherein it was held that an application dismissed on the ground of it being premature even if it is confirmed in appeal, does not operate as res judicata, the contention of the defendants that the order in CRP No. 3715 of 2000, dated 12-12-2000, operates as res judicata, against the sustaining of the present application fails, and the same is accordingly rejected.
Whether by appointing surveyor Court has delegated its power of interpreting the documents
21. The contention of the defendants that the Court below by appointing a Surveyor to demarcate the boundaries had delegated its power to the Surveyor to interpret the documents, collect evidence on behalf of a party and give finding as to who is in possession of the property, which cannot be permitted, and therefore, the order appointing Surveyor cannot be sustained, is noted only to be rejected. Admittedly, the lands, which the defendants and the plaintiffs are claiming, are located in the very same survey numbers, namely Sy.Nos. 484, 485 and 486 of Bachupally Village, Ranga Reddy District. The defendants have themselves in their counter-affidavit filed in the suit admitted that there is no dispute with respect to availability of land of the plaintiffs in the survey numbers in question, but the plaintiffs contend that there disputes with respect to the boundaries as the defendants had tried to remove and dislocate the boundaries of the land. In this context, it is apt to extract as to what the defendants had stated in the counter-affidavit filed in the suit, which reads:
Even I can meddle with the land in my occupation by way of sale or otherwise. No prejudice would be caused to the petitioners, inasmuch as, the extent of land claimed by the petitioners is very much available in the suit Sy.Nos. as against their khata in the revenue records, as Sy. Nos. 484/ B and 485/B admeasuring Ac.1-35 gts,, and Acs.2-20 gts. Respectively of Bachupally Village.
22. From the above averments made by the defendants in the written statement, it becomes clear that the defendants have admitted the availability of the land of the plaintiffs in the survey numbers in question. When the defendants have themselves admitted that the extent of the land claimed by the plaintiffs is very much available in the suit survey numbers against their katha in the revenue records, I fail to understand, why they are opposing the appointment of a Surveyor for locating and fixing of the boundaries. This apart, it may be noticed that though the defendants have themselves made an application to the Collector Survey and Land Records, for demarcation of lands in the survey numbers in question, but when the Inspector. Survey and Land Records, issued noticed dated 23-4-1999 fixing the date for conducting the demarcation as 11-5-1999, for the reasons best known to them, they did not present themselves at the spot nor co-operated with the Surveyor for conduct of the demarcation, and in those circumstances no demarcation could be done. When the defendants have themselves requested for demarcation of the lands purchased by them in the survey numbers, I fail to understand why they should have any objection as to the filing of the present application, which is filed by the plaintiffs praying for appointment of a Surveyor for locating and fixing the boundaries of the land claimed by them. Conduct of survey of land is in the realm of expert bodies and it is not the function of the Court to go and physically survey the land and fix the boundaries and settle the disputes between the parties. By appointing a Surveyor, the Court below had merely directed him to survey the entire extent of land in survey numbers in question and fix the boundaries of the land claimed by the plaintiffs with reference to the plan annexed, and by allowing the said application for appointment of the Surveyor, the Court below had neither delegated its power to the Surveyor nor directed him to interpret the documents nor collect the evidence nor give a finding on any of the disputes between the parties. As the Courts cannot adjudicate boundary disputes by making physical inspection, which are in the realm of technical bodies, this Court is not precluded from having their assistance for surveying the land to enable it come to a right conclusion. In the instant case, inasmuch as there appears to be boundary disputes as both the petitioners and respondents are claiming to own land in the very same survey numbers, the Court below had appointed a Surveyor to locate and fix the boundaries, with reference to the plan, and no exception can be taken to such an order.
Whether warrant travelled beyond the decree
23. The contention of the defendants that the warrant has traveled beyond the scope of the impugned order, is devoid of any merit. The defendants do not dispute the fact that the application was filed by the plaintiffs praying to appoint a Surveyor to survey the entire land in Sy.Nos. 484 and 485 to demarcate the boundaries in respect of the suit schedule property, and when the application was allowed by the Court below, they cannot be allowed to contend that inasmuch as the application was merely allowed, without making any directions, the warrant should not contain the consequential directions which should normally follow on an application being allowed. Unless and until the warrant discloses the nature of job to be undertaken by the Surveyor, it would be difficult for him to execute the warrant. Therefore, merely because in the impugned order it was recorded that the application is allowed, it does not mean that the warrant should not contain the relief sought for in the application. Every warrant should contain the details of the nature of job to be executed by the warrant holder, for if no such details are furnished in the warrant, passing of an order and issuing a warrant in terms therewith will only be in vacuum. Therefore, it cannot be said that the warrant had travelled beyond dictates of the decree.
24. In view of the foregoing reasons, I see no reason to interfere with the order under revision in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The CRP fails, and is accordingly dismissed. However, inasmuch as the defendants and plaintiffs are claiming to be holding lands in the survey numbers in question, the Surveyor shall after noticing the parties, in their presence and their Counsel, proceed to execute the warrant, with reference to the plans filed in the suit. No costs.