Telangana High Court
D.R. Leelavathi, vs Ch. Rajeshwaramma, on 3 November, 2023
Bench: P.Sree Sudha
1
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
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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,
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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
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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
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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
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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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PSS, J.
S.A.No.314 of 2005
HONOURABLE SMT. JUSTICE P. SREE SUDHA
SECOND APPEAL No.314 OF 2005
Dt.03-11.2023
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