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PSS, J.
S.A.No.314 of 2005
HONOURABLE SMT. JUSTICE P. SREE SUDHA
SECOND APPEAL No.314 OF 2005
JUDGMENT:
This Second Appeal is filed against the Judgment and decree passed in A.S.No.60 of 2001 dated 07.09.2004 on the file of IV Additional District Judge, Warangal, in which the Judgment and decree dated 27.02.2001 in O.S.No.874 of 1996 by the learned II Additional Junior Civil Judge, Warangal was confirmed.
2. The appellant/plaintiff filed a suit vide O.S.No.876 of 1996 against the respondents/defendants seeking direction to the defendants to close the door and window in their wall of H.No.25-10-249, facing in the open land of the appellant/plaintiff by way of mandatory injunction and restrain the respondents/defendants, their agents, successors and followers from trespassing and interfering in the peaceful possession of the appellant/plaintiff over the vacant land and lane of suit house by way of permanent injunction and also to award the costs of the suit. The trial 2 PSS, J.
S.A.No.314 of 2005 Court examined PWs.1 to 3 and marked Exs.A1 to A3 on behalf of plaintiff and DW1 and DW2 were examined and marked Exs.B1 to B3 on behalf of defendants. The trial Court after considering the arguments of both sides dismissed the suit. Aggrieved by the said Judgment plaintiff therein preferred an appeal before the first appellate court in A.S.No.60 of 2001 and the same was also dismissed confirming Judgment and decree passed by the trial Court. Aggrieved by the same, she preferred the present Second Appeal.
3. The learned counsel for the appellant herein mainly contended that both the courts ought to have rejected the report of the Advocate Commissioner, when a serious objection was raised by the appellant that the Advocate Commissioner was not examined and his report was not marked, but it was considered for arriving to the conclusion. It is further contended that the trial court has no right to shift the burden on the appellant saying that the appellant has not taken steps to examine the Advocate Commissioner, 3 PSS, J.
S.A.No.314 of 2005 but the burden is on the respondent/defendants to prove the Commissioner report since the Commissioner was appointed at their instance. It is further contended that the Commissioner was appointed on the request of the respondents/defendants even before filing of the Written Statement shows that the respondents deliberately created an evidence to prove their illegal action through Advocate Commissioner and requested this Court to set aside the concurrent findings of both the Courts.
4. Heard the arguments of the learned counsel for the appellant. As there is no representation for the respondents on two subsequent dates, it is treated that there are no arguments on behalf of the respondents and reserved for Judgment.
5. The parties herein are referred as plaintiff and defendants as arrayed in the trial court for the sake of convenience.
6. The main contention of the plaintiff is that the Advocate Commissioner was appointed at the instance of the 4 PSS, J.
S.A.No.314 of 2005 defendants before filing of the written statement, in fact he was the Junior of the counsel for the defendants. Though she filed several objections regarding the report, the Advocate Commissioner was not examined by both the Courts and the report was not marked, but it was considered while arriving to the conclusion. As per the report of the Advocate Commissioner, he gave notices to both the Advocates on 28.03.1997, 01.04.1997, 04.04.1997 and finally on the date of inspection. At the time of inspection, both the counsel and both the parties were also present. The Advocate Commissioner visited the suit schedule property and got the photographs of the same. He filed the report along with photographs and a sketch map and the report was filed on 07.05.1997 and objections were filed on 28.08.1997, but the objections raised by the plaintiff counsel were not considered by the trial Court. The trial court observed that it is for the plaintiff's counsel to examine the Advocate Commissioner and put forth his objections by way of cross-examining the Advocate Commissioner, but he failed to do so. Later, after disposal of the suit, she came 5 PSS, J.
S.A.No.314 of 2005 with the same objection before the first appellate court. Even the first appellate Court observed that Advocate Commissioner was very-well available for cross-examination and he was practicing at Warangal only, but the plaintiff did not choose to examine him as her witness or at least as a Court Witness to elicit facts regarding location of the property and failed to take necessary steps. Though she stated that the Advocate Commissioner was none other than the junior attached to the counsel of the defendants, she could have raised the said objection at the time of appointing him as Advocate Commissioner itself, but they kept quiet, therefore they cannot raise the objection regarding the report at the appeal stage and thus the contention of the appellant herein was already answered by the first appellate court and also considering the other evidence on record confirmed the Judgment by dismissing the appeal.
7. Again with the same contention appellant/plaintiff preferred the present second appeal. It cannot be considered 6 PSS, J.
S.A.No.314 of 2005 as substantive question of law. This second appeal is filed against the concurrent findings of both the Courts. Unless there is some substantive question of law, this Court need not interfere with the said findings, as such the present appeal is liable to be dismissed.
8. In the result, the second appeal is devoid of merits and is dismissed confirming the concurrent findings of both the Courts. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
____________________________ JUSTICE P. SREE SUDHA Dt.03-11-2023.
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S.A.No.314 of 2005 HONOURABLE SMT. JUSTICE P. SREE SUDHA SECOND APPEAL No.314 OF 2005 Dt.03-11.2023 krl