Andhra Pradesh High Court - Amravati

Judge-Cum-Judicial Magistrate ... vs Unknown on 11 August, 2022

                             1


      THE HON'BLE SRI JUSTICE BATTU DEVANAND

       CIVIL REVISION PETITION NO.1139 of 2022

O R D E R:

This Civil Revision Petition has been filed aggrieved by

the order and decree, dated 02.05.2022 in I.A.No.291 of 2022

in O.S.No.90 of 2015, on the file of the Principal Junior Civil

Judge-cum-Judicial Magistrate of I Class, Eluru.

2) Heard Sri T.V. Jaggi Reddy, learned Counsel for the

Petitioner and Sri P.C. Venkaiah, learned counsel for the

Respondent and perused the material available on record.

3) The Petitioner is the defendant and the Respondent

is the Plaintiff in the suit in O.S.No.90 of 2015, on the file of

the Principal Junior Civil Judge-cum-Judicial Magistrate of I

Class, Eluru.

4) The case of the petitioner is that the respondent

herein filed the suit in O.S.No.90 of 2015, on the file of the

Principal Junior Civil Judge-cum-Judicial Magistrate of I Class,

Eluru, seeking direction to vacate and deliver the vacant

possession of plaint „A‟ schedule property i.e., 66.66 Sq. Yards

of site shown as „ABCD‟ in the plaint plan, failing which to

grant the said relief through Court and consequential direction

to grant permanent injunction and also to grant mandatory

injunction directing the defendant to remove the slab of an

extent of 2.66 Sq. yards (6 feet width and 6 feet length) which

is projected into the site and the pillar which was constructed

in the site of the respondent herein.

5) The further case of the petitioner is that the

respondent herein filed a petition under Order 26 Rule 9 and

Sec.151 of C.P.C. in I.A.No.138 of 2019 in O.S.No.90 of 2015,

seeking to appoint an Advocate Commissioner to note down

the physical features of the plaint schedule property, to

measure the extent of the Arial encroachment by constructing

the slab by the petitioner herein and the extent of

encroachment of the site by the petitioner herein, with the

assistance of Mandal Surveyor and to file report along with

plan. The said application was allowed by the trial Court by

order, dated 27.06.2019. Pursuant to the orders of the trial

Court, the learned Advocate Commissioner executed warrant

and filed his report. Dissatisfied with the report of the learned

Advocate Commissioner, the petitioner filed I.A.No.291 of 2022

seeking to re-entrust the warrant to the learned Advocate

Commissioner to measure the entire layout in R.S.No.30, 31

and 25, find out the plaint schedule property and verify the link

documents relating to layout. The said application was

dismissed by the trial Court by order, dated 02.05.2022.

Aggrieved by the said order, the petitioner preferred the

present Civil Revision Petition.

6) Learned counsel for the petitioner submits that the

trial Court ought to have seen that the Advocate Commissioner

did not consider the work memo submitted by the petitioner

before conducting the survey and also did not answer all the

issues raised in the work memo. The trial Court ought to have

seen that the Advocate Commissioner with the help of the

surveyor did not identify the plaint schedule property basing on

the F.M.B. pertains to Survey Nos.30, 31, 25 and he only

identified basing on F.M.B. pertaining to Sy.No.31/1. The trial

Court ought to have seen that the sketch given by the

Surveyor along with the Advocate Commissioner report does

not give the layout particulars of the plots of the plaint

schedule property and did not enclose the approved layout

under which he purchased the suit schedule properties.

7) Learned counsel for the petitioner further submits

that the trial Court erred in stating that evidence of D.W.1 is

also sufficient to establish the location of the property. In fact,

the petitioner being assigned the land by the government in

Sy.No.25 which is adjacent to the Sy.Nos.30 and 31 and the

vendors of the respondent herein might have encroached into

the Sy.Nos.30 and31 and formed the layout. Unless the

Advocate Commissioner considers the Sy.Nos.30, 31 & 25, the

exact location of the plaint schedule property cannot be

identified. The trial Court ought to have seen that unless the

Advocate Commissioner give the exact report with regard to

the identification of the suit property and encroachments if any

made by the petitioner, the said report is not done as per the

orders issued by the trial Court. Therefore, he prays to allow

the Civil Revision Petition.

8) Learned counsel for the respondent submits that as

per Ex.B.1 the site of the petitioner is in Survey No.25/2. With

an intention to grab the property, the petitioner tried to make

constructions in the site of the respondent. The surveyor

measures the property with the help of Panchayat layout. The

plaint schedule property located in S.R.No.31/1, therefore,

there is no need to measure Survey Nos.25 and 30 and as

such, the re-entrustment of warrant to the Advocate

Commissioner is not necessary. Hence, he prayed to dismiss

the present Civil Revision Petition.

9) Learned counsel for the respondent relied on a

judgment of this High Court in R. Vijayudu v. N.

Ramachandra Reddy1.

2004()6) ALT 411 (S.B.)

10) By following the judgment rendered by this Court in

Kushal Rao v. Shyam Rao 2 at para No.21 observed as

extracted hereinunder:

21. It is to be remembered that before going to appoint a Commissioner second time, the Court must record its reasons about its dissatisfaction over the proceedings of the Commissioner or the report of the Commissioner is not satisfactory, either at its instance or at the instance of either of the parties.

11) In Kushal Rao's case (2nd supra) at para No.14 also

observed as extracted hereinunder:

"There is no provision under Order XXVI of the Code for appointing more than one Commissioner or to reject the report of the Commissioner and the evidence without any justification.

As a normal rule, 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 (sic. sub-rule) (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. But, in view of the implications of Order XXVI, Rule 10 sub-clause (sic. sub-rule) (2) of the Code, such a report and the evidence recorded by the Commissioner would be evidence in that case, which has to be taken into consideration while deciding the matter in issue by the Court and, therefore, as a routine, if a second Commissioner is appointed, it has got serious consequences wrought (sic. fraught) with

1997 (1) ALT 93

danger to the ultimate justice. Thus such a procedure of appointing second Commissioner or more than one Commissioner for the same purpose is said to be improper and illegal."?

12) Hence, having heard to the above facts and

circumstances, the legal position and following the judgments

in R. Vijayudu (1 supra) and Kushal Rao (2 supra), in the

considered opinion of this Court, there are no merits in the

present Civil Revision Petition and interference into the order,

dated 02.05.2022 in I.A.No.291 of 2022 in O.S.No.90 of 2015,

by the learned Principal Junior Civil Judge-cum-Judicial

Magistrate of I Class, Eluru, is not warranted.

13) In the result, this Civil Revision Petition is dismissed

at the stage of admission.

14) There shall be no order as to costs.

As a sequel, miscellaneous petitions, if any pending, shall