APHC010002382024
IN THE HIGH COURT OF ANDHRA PRADESH ::
AMARAVATI
(Special Original Jurisdiction)
MONDAY ,THE NINETEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FOUR
[3311]
PRESENT
THE HONOURABLE MS JUSTICE B S BHANUMATHI
CIVIL REVISION PETITION NO: 15 OF 2024
Between:
AGAMEER KHALEED BASHA AND OTHERS ...PETITIONER(S)
AND
KATWAL KHADAR BASHA AND OTHERS ...RESPONDENT(S)
Counsel for the Petitioner(s): SRI. VUBBARA DUSHYANTH REDDY
Counsel for the Respondents: NIMMAGADDA REVATHI
The Court made the following:
ORDER:
This revision petition is filed under Article 227 of the
Constitution of India against the orders, dated 19.12.2023,
dismissing the petition in I.A.No.966 of 2023 in A.S.No.2 of 2016 on
the file of the Court of V Additional District Judge, Rayachoty, filed
by the appellants/petitioners herein under Order XXVI Rule 9 and
Section 151 CPC.
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2. Heard Sri V.Dushyantha Reddy, learned counsel for the
petitioners and Ms. Nimmagadda Revati, learned counsel for the 1st
respondent.
3. The facts, briefly stated, are as follows:
I.A.No.966 of 2023 is filed to re-entrust the warrant to the
commissioner to inspect the schedule property along with Mandal
Surveyor and to note down the boundaries by confirming the
directions with the help of “Compass box”. The petitioners
contended that they filed I.A.No.738 of 2018 to appoint a
commissioner to locate the suit schedule property as per the F.M.B
with the assistance of a Mandal Surveyor and to note down the
physical features of the suit schedule property, and accordingly, a
commissioner was appointed and on his visit, he noted the ongoing
construction of a building in the plaint schedule property and took
the photographs. He further submitted that in the report, dated
25.07.2023, submitted by the commissioner, it was noted that none
of the boundaries physically tallied on ground with the plaint
schedule property and such observation could be due to mistake in
identifying the directions, and therefore, it is necessary to
re-entrust the warrant to confirm the directions with the help of a
compass box.
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C.R.P.No.15 of 2024
4. The petition was opposed by filing counter of the respondent
stating that the commissioner executed the warrant as per the
memo given and the contention of the petitioners are to be raised
against the report of the commissioner and for the said purpose,
warrant need not be re-entrusted.
5. After hearing both parties, the trial Court dismissed the
petition observing that if there is any mistake in respect of the
boundaries, the same can be clarified through the evidence of the
appellants/plaintiffs while recording their evidence while examining
the commissioner and the Mandal Surveyor and that re-entrustment
of the warrant would unnecessarily prolong the disposal of the
appeal which is of the year 2016. It is further observed that the
appellants relied on the decision, dated 18.08.1998, of the High
Court of A.P. in Guthula Satyamma Vs. Rudraraju Venkata
Raju1
in which it was observed that if the earlier report of the
commissioner is creating confusion regarding points in dispute, reentrustment of warrant to another advocate cannot be said to be
illegal, but, in the present case, there is no such confusion except
the alleged mistake pointed out by the appellants and if at all there
is a mistake, the same can be elicited through the evidence of the
1 1998(5) ALD 410 # 1998(5) ALT 95
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C.R.P.No.15 of 2024
commissioner and the Surveyor, and therefore, the above-said
decision does not support the appellants.
6. Aggrieved by the order, this revision petition is filed.
7. The learned counsel for the petitioners submitted that the
appellate Court had erroneously dismissed the petition without
considering the basic contention of the petitioners that the report is
not based on the actual directions existing on ground, and
therefore, it is necessary to re-entrust the warrant and the same
cannot be ascertained through oral evidence in the examination of
witnesses since the report was already submitted basing on the
above observations.
8. The learned counsel for the 1st respondent, since all other
respondents remained ex parte in the appeal, submitted that the
petitioners intended to overcome the adverse observations in the
report of the commissioner by seeking the relief in the petition and
that the appellate Court rightly dismissed the petition with the
observations already noted above.
9. According to the petitioners, the commissioner noted at
paragraph No.3 of 2nd page of his report that “the S.No.855/2 of
Rayachoti village is total extent of Ac.2.54 cents and the boundaries
of the said total extent are: East: Sy.No.373 of Pemmadapalle
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C.R.P.No.15 of 2024
village….”. Similarly, in para No.4 of the 2nd page, it is observed
that “the S.No.373 of Pemmadapalle village is total extent of
Ac.2.70 cents. The boundaries of the said total extent are: East:
land in S.No.374/3 of Pemmadapalle village.”
10. On the other hand, learned counsel for the 1st respondent
submitted that the commissioner recorded the representation of the
petitioners and identification of the property in the report itself and
therefore, there is no need for re-entrustment of the warrant.
11. Since the very contention of the petitioners is that the
observations of physical features are not tallying with the directions
on ground, the same cannot be clarified by mere oral evidence. If
at all the observations already recorded are correct on ground,
re-entrustment would not cause any prejudice to the other side,
whereas if the observations in the report are incorrect on ground
due to mistaken observation of the directions, the same can be
correctly observed now by use of a compass box and that would
help the Court to come to a right decision and it would not cause
any prejudice to the other side. It is only if the relief is refused, the
decision cannot be rendered properly and it would cause prejudice
to the appellants. It is also pertinent to mention that the learned
counsel for the appellants, basing on the sketch filed by the
commissioner, submitted that the main road is not running exactly
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C.R.P.No.15 of 2024
from north to south, but it is diagonally running from corner to
corner tilting from the access from north to south, and therefore,
mere observation, without use of compass box, would definitely
lead to incorrect report without any intention to misreport, and
therefore, it is necessary to re-entrust the warrant. But, the
appellate court has not rightly appreciated the contention of the
petitioners. Therefore, it is a fit case to allow the petition.
12. In the result, the Civil Revision Petition is allowed, setting
aside the orders, dated 19.12.2023, passed in I.A.No.966 of 2023 in
A.S.No.2 of 2016. Consequently, I.A.No.966 of 2023 is allowed and
the appellate Court is directed to re-entrust the warrant to the same
commissioner and fix fresh fee payable by the petitioners and fix
the time within which the execution of the warrant shall be
expeditiously completed in view of the long pendency of hearing of
the appeal which is an old case of the year 2016.
Both the parties are directed to cooperate with the
commissioner who shall execute the warrant with the help of a
Mandal Surveyor. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________
B.S.BHANUMATHI, J
19.02.2024
RAR
