HC - the Commissioner’s report and plan are useful only for the purpose of noting physical features available at the field and Commissioners report is no substitute for decision of the Court

IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH

AT HYDERABAD

HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

SECOND APPEAL No.1099 of 2010

DATE: 21.11.2012

Between:

Dantla Pydi Rajamma

                                                                                                …… Appellant

And

Kuddada Sundaramma and 2 others

   ...Respondents

HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

SECOND APPEAL No.1099 of 2010

JUDGMENT :

        The plaintiff/appellant herein filed the suit in the trial Court for declaration of her ownership to the plaint schedule land of 200 Sq. Yards in S.Nos.60 and 61 of Moolagada village of Pendurthi Mandal, Visakhapatnam District and for vacant possession of the same after evicting the defendants therefrom and removing constructions with Door No.65-3-200 in that land and for permanent injunction.  The plaintiff based her claim on Ex.A-1 assignment order dated 25.06.1979 of Revenue Divisional Officer, Visakhapatnam.  The plaintiff being Ex-serviceman’s widow was given Ex.A-1 assignment order in respect of house site in Plot No.106 in the above S. numbers.  The defendants deny right of the plaintiff for the site in which they have been residing by raising house property therein.  P.W-2 is an Ex-serviceman, P.Ws 3 and 4 are present and former secretaries of Ex-servicemen Association/Society.  All of them speak to the allotment of plot No.136 measuring 200 Sq. yards in the above S.numbers in favour of the plaintiff under Ex.A-1.  Ex.X-1 is copy of the proceedings relating to allotment of plots in that locality.  During pendency of the suit in the trial Court, an Advocate-Commissioner was appointed to localise the plaint schedule land.  The Advocate-Commissioner after making local inspection of the property in the presence of both parties, filed his report along with plan stating that Orange marked portion in the plaint plan is the plaint schedule property.  The Advocate-Commissioner localised the property with the assistance of Mandal Surveyor and the field measurement book and other records.  The trial Court basing on report of the Advocate-Commissioner decreed the suit on the ground that no objections were filed by both the parties to the Commissioner’s report.  In fact, not only the defendants, but also the plaintiff filed objections to the Commissioner’s report and plan.  The lower appellate Court considered both Ex.A-1 and X-1 with reference to report of the advocate-commissioner and came to the conclusion that the plaintiff failed to localise the property in possession of the defendants as the property covered by Ex.A-1 with reference to the Commissioner’s report; and reversed decree of the trial Court.

        2) In this second appeal, it is contended by the appellant’s counsel that when the lower appellate Court found that there was no proper localisation of the plaintiff’s site by the Advocate-Commissioner in the report, the lower appellate Court should have remanded the matter to the trial Court for re-entrustment of the Commissioner’s warrant for correct localising of the plaintiff’s site.

        3) In so far as allotment or assignment of 200 Sq. yards in S.Nos.60 and 61 comprising in Plot No.136 in favour of the plaintiff as widow of Ex-serviceman is concerned, there is no dispute.  The dispute is only localising the site covered by Ex.A-1 and whether the site in possession of the defendant is the same site covered by Ex.A-1 assignment order.  Localisation of site is purely a question of fact.  The lower appellate Court went in detail into description of the site contained in Ex.A-1 and noticed that plot No.136 is bounded on North by vacant site, on East by Plot No.135, on South by Plot No.118 and on West by Plot No.137.  From various allotments of sites contained in Ex.X-1 proceedings of the Revenue Divisional Officer, the lower appellate Court noticed that Eastern plot No.135 was assigned to D.Subba Rao and the Southern plot No.118 was assigned to P.Subbamma.  There were no details as to assignment of plot No.137 to any person, in Ex.X-1.  As per written statement, the first defendant is in occupation of 104 Sq. yards of site with the following boundaries:  East-House of Neelapu Dillirao, South- 30ft. road, West-House of M.Dandasi and North-15 ft. Road.  As per written statement of the 3^rd defendant, she is in possession of 60 Sq. yards of site with a house therein bounded by East-House of the 4^th defendant, West-house of the 1^st defendant, North-30 Ft. road and South-15 Ft. road.  According to the Commissioner’s report, the defendants are in occupation of the schedule property with A.C sheet roofed house with the following boundaries: East-Houses of Chandra Sekhar Reddy and 3^rd defendant, South – Cement road, West –5 Ft. Road and North 12 Ft. road.  As can be seen from Ex.A-1 assignment order, there are no roads abutting Plot No.136 which was assigned to the plaintiff.  It is for the plaintiff to explain boundaries and correlate the present boundaries with the boundaries mentioned in Ex.A-1 assignment order, and also to explain general and physical features like roads on three sides as per the Commissioner’s report.  In the absence of any explanation and correlation, simply the Courts were not expected to go by the Commissioner’s findings.  After all, the Commissioner’s report and plan are useful only for the purpose of noting physical features available at the field and Commissioner’s report is no substitute for decision of the Court.  The lower appellate Court found that the plaintiff has failed to localise her site covered by Ex.A-1 assignment order this Court is of the opinion that this is not a case for remand of the matter to the trial Court for the purpose of re-entrusting the warrant of commission for further localising the plaintiff’s site.  This Court is of the opinion that the plaintiff filed the suit in the trial Court just by picking and choosing the property of the defendants on the assumption that the site is in their occupation is the property covered by Ex.A-1 assignment order, in a speculative manner.  I find no error muchless legal error in the decision arrived at by the lower appellate Court and in dismissing the suit of the plaintiff/appellant.

        4) In the result, the second appeal is dismissed with costs.

_______________________________

SAMUDRALA GOVINDARAJULU, J

November 21, 2012

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