Disposed

Budiga Talari Seshamma, v. Jalal (Gujula)Mahammad Ismail

Telangana HC30 Dec 2011CRP/5462/2011

Case brief

AI extract

What is this about?

This revision challenges an order dismissing an application for appointing a surveyor to inspect suit land. The Court held that if the existing Commissioner's report stands, no second inspection is needed, but reserved time for parties to submit objections to that report.

What did the court decide?

The revision petition was disposed of at the admission stage. The parties were granted two weeks to place objections on record to the Commissioner's report.

Budiga Talari Seshamma, Vs Jalal (Gujula)Mahammad Ismail — Property and Title | Telangana HC (2011)

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THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY

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C.R.P.No.5462 of 2011

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3 0 th December, 2011

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Between :-

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Budiga Talari Seshamma and another .. Petitioner And Jalal (Gajula) Mahammad Ismail and another .. Respondents

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THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY

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C.R.P.No.5462 of 2011

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ORDER:-

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This revision has been directed against the order dated 21-92011 passed in I.A.No.528 of 2011 in O.S.No.460 of 2008 on the file of the Principal Junior Civil Judge, Dhone, whereby and whereunder the learned Judge dismissed the petition filed by the defendants under Order XXVI Rule 9 read with 151 of C.P.C. seeking appointment of the Mandal Surveyor to inspect/survey the suit schedule land.

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The respondents are the plaintiffs in O.S.No.460 of 2008. They filed the suit for perpetual injunction in respect of Ac.3.23 cents comprising Sy.No.103 bounded by East:- Land of Yamasani Vengala Reddy, West:- Rastha, North:- Land of defendants and South:- Land of Akula Chinna Pullaiah. The defendants entered appearance and filed written statement resisting the relief sought for by the plaintiffs. They pleaded in the written statement that the 1^st defendant has right, possession and enjoyment in respect of Ac.5.40 cents comprising Sy.No.104 and the plaint schedule ‘CDEF’ is falling within Sy.No.104,

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over which the plaintiffs neither have title nor possession. The plaintiffs filed I.A.No.722 of 2008 under Order XXVI Rule 9 read with Section 151 of C.P.C. seeking appointment of an Advocate-Commissioner to inspect the suit schedule land. Learned Principal Junior Civil Judge allowed the said application and appointed the AdvocateCommissioner as well as the Mandal Surveyor. The relevant portion of the Order reads as hereunder:-

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“Heard both sides. The Counsel for respondents reported that this petition may be allowed on condition that the Mandal Surveyor to be appointed along with Commissioner. Hence, this petition is allowed. Sri C.Rafiq is appointed as Advocate Commissioner and his fee is fixed at Rs.2,000/- and on request Mandal Surveyor concerned is appointed to survey the land filed his report his fee is fixed Rs.1,000/- for filing report call on 14-6-2011.”

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It appears that the order dated 5-5-2011 passed in I.A.No.722 of 2008 has been modified by the learned Principal Junior Civil Judge and pursuant to the modified order, the Advocate-Commissioner inspected the suit schedule land on 30-10-2011 and filed his report. While so, the defendants filed I.A.No.528 of 2011 under Order XXVI Rule 9 read with Section 151 of C.P.C. seeking appointment of Mandal Surveyor to inspect/survey the suit land with reference to the Survey Number and extent. The plaintiffs filed counter opposing the prayer sought for in the petition. The learned Principal Junior Civil Judge, on considering the material brought on record and on hearing the learned Counsel appearing for the parties, proceeded to dismiss the application by order dated 21-9-2011. Hence, this petition.

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Heard Sri C.Prakash Reddy, learned Counsel appearing for the petitioners.

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Learned Counsel appearing for the petitioners submits that the Commissioner who inspected the suit schedule land ought to have

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taken the assistance of the Mandal Surveyor while executing the warrant entrusted to him to make it clear as to whether the disputed land falls in Sy.No.103 or Sy.No.104. A further submission has been made that the petitioners/defendants are not claiming any right over the land bearing Sy.No.103 and likewise the respondents-plaintiffs are also not claiming the land in Sy.No.104.

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The dispute is in which of the two numbers, the suit schedule land falls i.e., either in Sy.No.103 or Sy.No.104. As can be seen from the material brought on record, the Commissioner appointed pursuant to the order 5-5-2011 has executed the warrant and filed his report. The petitioners/defendants must have filed their objections to the Commissioner’s report. Unless the earlier Commissioner report is discarded, the question of appointing the second Commissioner to inspect the suit schedule land does not arise. In that view of the matter, I am not inclined to interfere with the order impugned in the revision. However, if the petitioners/defendants have not placed their objections to the Commissioner’s report, they are at liberty to place on record their objections within a period of two weeks. In the event of the petitioners/defendants placing on record their objections within the time specified supra, the learned Principal Junior Civil Judge has to consider the objections to the Commissioner’s report before accepting the same and proceeding with the trial.

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Subject to the above observations, this revision petition is disposed of at the admission stage itself. No order as to costs.

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B.Seshasayana Reddy, J

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30^th December, 2011

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NOTE:- Registry is directed to furnish the order Copy by 03-01-2012.

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(B/o.smr)

Budiga Talari Seshamma, v. Jalal (Gujula)Mahammad Ismail

Case brief

What is this about?

What did the court decide?

Budiga Talari Seshamma, v. Jalal (Gujula)Mahammad Ismail

Case brief

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