Gandreddi Surya Narayana vs Sunkavalli Venkata Rao
2023 Latest Caselaw 2196 AP

Citation : 2023 Latest Caselaw 2196 AP
Judgement Date : 21 April, 2023

Andhra Pradesh High Court - Amravati

Gandreddi Surya Narayana vs Sunkavalli Venkata Rao on 21 April, 2023

Bench: K Manmadha Rao

                                  1


           THE HON'BLE DR.JUSTICE K. MANMADHA RAO

            CIVIL REVISION PETITION No.7610 of 2018

ORDER:

This Civil Revision Petition is filed against the docket order

dated 19.09.2018, passed in I.A.No.257 of 2018 in I.A.No.230 of

2016 in O.S.No.145 of 2016 on the file of the Court of Principal

Junior Civil Judge, Kovvur, West Godavari (for short "the court

below").

2. Heard Mr. Sai Gangadhar Chamarthy, learned counsel for

the petitioner and Mr.Rama Krishna Akurathi, learned counsel for

the respondents.

3. The I.A.No.257 of 2018 in I.A.No.170 of 2016 in

I.A.No.230 of 2016 in O.S.No.145 of 2016 was filed by the

petitioner/defendant under Order 26 Rule IX of C.P.C., seeking re-

entrustment of the warrant of commission to any other counsel.

4. Brief facts of the petition are that the respondent/plaintiff

filed I.A.No.257 of 2018 in I.A.No.230 of 2016 in O.S.No.145 of

2016 to measure the land in R.S.No.139/3 of Pasivedala Village

and to fix the boundaries with reference to the documents of the

both parties and to report the existence of the walls referred in the

judgment in O.S.No.601 of 2008 and to note down the physical

features and also to measure the site of the petitioner with

reference to the sale deed dated 04.11.1998 and the land of the

respondent from the northern boundary i.e., of Vegi

Satyanarayana with the assistance of surveyor. Accordingly, the

commissioner was appointed. Initially on 02.10.2016, 16.10.2016

and 10.05.2017 the commissioner searched for separate stones

but could not trace them. Thereafter, he did not visit the property

and kept quiet. Thereafter, the trial Court issued notice to the

commissioner and on 16.07.2018 suo-moto recalled and the matter

was posted to 30.07.2018 by appointing another commissioner.

All of sudden, the commissioner filed a report on 30.07.2018

without issuing a copy of the report to the petitioner and without

even executing the warrant. Thus, this report would not help the

court to adjudicate the dispute and in fact, the commissioner has

not at all executed the warrant. Thus, he seeks to scrap the report

of the commissioner and re-entrust the same to another

commissioner.

5. The respondent filed counter denying all the allegations

made in the petition. It is stated that the commissioner has

categorically mentioned in his report that except the land in RS

No.139/3, there is no other site in the disputed area therefore the

question of identification of the property of the petitioner does not

arise. Therefore, prayed to dismiss the petition.

6. On a perusal of the material available on record, this

Court observed that, the trial Court has appointed Sri J.Sundara

Ramaiah, advocate to measure the land in R.S.No.139/3 and to

note down the physical features with reference to the sale deed

with the assistance of Mandal Surveyor. Thereafter, he filed

report. There is no direction to him to identify with reference to the

FMB. The direction given to him was to measure the properties of

both parties with reference to their sale deeds with the assistance

of the Mandal Surveyor. In the report, it shows that without

complying the directions issued in the warrant that to alter issuing

several notices, recalling the warrant and re-entrusting to other

counsel. The report would not aid the court in resolving the

dispute between the parties. Therefore, it has to be scraped and

the warrant has to be re-entrusted afresh to another counsel.

7. In a case of Durgam Mangamma vs. P. Mohan and

another1, wherein the High Court of Andhra Pradesh held that :

It is submitted on behalf of the plaintiff that originally in the trial Court a Commissioner was appointed in I.A. No. 878 of 1980. Relying upon the report of the Commissioner and other material the suit was decreed in favour of the plaintiff. Admittedly no second Commissioner can be appointed for the same purpose unless and until the report of the Commissioner is expunged. By virtue of the impugned orders in I.A. No. 642 of 1988 the first Commissioner's report is sought to be expunged which occasions not only in failure of justice but will also result in irreparable injury to the plaintiff. I find substance in the said submission and by virtue of the appointment of the second Commissioner it not only results in failure of justice but will cause irreparable injury to the plaintiff

MANU/AP/0409/1991

and consequently even according to the observations made in the above three decisions this is a fit case where Section 115 of the Code of Civil Procedure can be invoked.

8. On perusing the above citation, it is clear that admittedly

no second Commissioner can be appointed for the same purpose

unless and until the report of the Commissioner is expunged. In

the present case, the report did not enclose plan of the Mandal

Surveyor and the report did not comply the directions of the

warrant and the same is liable to be set aside. It is a fact that

survey number in the sale deed of the defendant is not near the

land of the plaintiff/petitioner herein. The trial Court has erred in

measuring the land with reference to sale deed is measurement of

land with FMB with corresponding survey number only.

9. Having regard to the facts and circumstances of the case

and the law laid down in the decision referred to above, this Court