Back
2019 Supreme(AP) 119
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
G. SHYAM PRASAD, J.
Pabbiti Vijaya - Appellant
Versus
Bale Mangamma and Ors. - Respondent
CRP No. 881 of 2019
Decided On : 18-07-2019
Advocate Appeared:
For the Appellant : S. Subba Reddy
Headnote:
Civil Procedure Code – Order XXVI – Rule 9 – Petitioner is defendant in OS said suit was filed by 1st respondent herein against petitioner for possession of schedule property after evicting defendants there from, petitioner/defendant that she never encroached property of respondent, petitioner filed application for appointment of Advocate Commissioner for noting down physical features of her property and property of respondent with reference to title deeds of respective parties in suit –Held, Court might appointed mandal surveyor who measured land and submitted report accordingly, There is no material brought on record to show that finding of Trial Court in that regard is incorrect and there was no filed before Trial Court for appointment of Mandal Surveyor, petitioner has not brought any material on record that mandal surveyor has not measured the land properly and that he has not given any notice before measuring land and report filed by him is false and fabricated, petitioner is not entitled to seek for appointment of Commissioner for conducting survey again as rightly observed by Trial Court, It is also pertinent to note that unless petitioner establishes that there is defect in conducting survey he cannot seek for appointment of surveyor again for same purpose, Therefore, there are no valid grounds to interfere with order passed by the Trial Court – Petition is dismissed. (Para 16, 17, 18)
Facts of the case:
Petitioner is defendant in OS said suit was filed by 1st respondent herein against petitioner for possession of schedule property after evicting defendants there from, petitioner/defendant that she never encroached property of respondent, petitioner filed application for appointment of Advocate Commissioner for noting down physical features of her property and property of respondent with reference to title deeds of respective parties in suit.
Findings of the court:
Court might appointed mandal surveyor who measured land and submitted report accordingly, There is no material brought on record to show that finding of Trial Court in that regard is incorrect and there was no filed before Trial Court for appointment of Mandal Surveyor, petitioner has not brought any material on record that mandal surveyor has not measured the land properly and that he has not given any notice before measuring land and report filed by him is false and fabricated, petitioner is not entitled to seek for appointment of Commissioner for conducting survey again as rightly observed by Trial Court, It is also pertinent to note that unless petitioner establishes that there is defect in conducting survey he cannot seek for appointment of surveyor again for same purpose, Therefore, there are no valid grounds to interfere with order passed by the Trial Court.
Result: Petition is dismissed.
ORDER :
G. SHYAM PRASAD, J.
1. This revision is arising out of order, dated 7.2.2019 passed in IA No. 49 of 2019 in OS No. 52 of 2012 on the file of the II Additional Junior Civil Judge, Tadepalligudem.
2. The brief facts of the case are that the revision petitioner is the defendant in OS No. 52 of 2012. The said suit was filed by the 1st respondent herein against the petitioner for possession of schedule property after evicting the defendants there from.
3. The respondent/plaintiff in order to prove possession over the schedule property got measured the land through a mandal surveyor and submitted a report of the mandal surveyor and rough sketch before the Court. The petitioner/defendant contends that the mandal surveyor has not given any notice while measuring the land and she had totally denied the report submitted by the respondent before the Court. It is the case of the petitioner/defendant that she had never encroached the property of the respondent. Therefore, the petitioner has filed an application in IA No. 49 of 2019 for appointment of an Advocate Commissioner for noting down the physical features of her property and the property of the respondent with reference to the title deeds of the respective parties in the suit.
4. The Trial Court on consideration of the pleadings of both parties has dismissed the application for appointment of Commissioner. Aggrieved by the same, the present revision has been preferred by the petitioner/defendant seeking for appointment of Commissioner for noting the physical features of the schedule property with reference to the title deeds of the respective parties.
5. The order passed by the II Additional Junior Civil Judge reveals that the mandal surveyor was examined as P.W. 4 on 18.1.2018 as a witness in the above suit. The Trial Court mainly dismissed the application for appointment of Commissioner on the ground that mandal surveyor was appointed to measure the land in IA No. 1230 of 2017, and as the petitioner has not given any suggestion to mandal surveyor that he had not given any notice to the petitioner before measuring the land. On that ground, that Trial Court dismissed the application of the petitioner for appointment of Commissioner holding that there was no need to appoint an Advocate Commissioner for the same purpose. It is also observed by the Trial Court that the petitioner was coming up with one petition or the other without adducing evidence on his behalf.
6. Learned Counsel for the petitioner mainly submits that the mandal surveyor has not conducted any survey of the land and had not submitted any report. He had not given any notice to the petitioner before measuring the land. In order to resolve the dispute between the petitioner and the respondent with regard to possession of the schedule property, the extent of the land alleged to have been encroached could be proved only by measuring the land through an Advocate Commissioner in this matter.
7. Learned Counsel for the petitioner further submits that though the II Additional Junior Civil Judge has referred to IA No. 1230 of 2017 through which, mandal surveyor was appointed, the same is not in existence and therefore, the appointment of Commissioner for surveying the land with reference to the title deeds of the parties is very essential in this matter.
8. The petitioner is the 1st defendant in the suit. She has filed written statement denying the allegations that the mandal surveyor surveyed the property on 6.8.2011 and issued a certificate on 30.11.2011 with a finding that the defendants encroached the site of the plaintiff. According to her, the said survey was not at all conducted and the alleged survey report was brought into existence by the plaintiff by influencing the concerned authority. Therefore, the petitioner seeks for appointment of Commissioner in this matter for noting down the physical features of the schedule property with reference to their title deeds.
9. Learned Counsel for the petitioner placed reliance on
