BABY Vs. LALITHA K. PUTRAN

JUDGEMENT

(1.) This petition is directed against the impugned order dtd. 19/3/2019 passed in Misc.No.7/2018 by the II Addl.Civil Judge & JMFC, Udupi, whereby the said Misc.petition filed by the respondents under Sec. 151 and 152 CPC was allowed by the trial court.

(2.) Heard learned counsel for the petitioner and learned counsel for the respondents 1 to 3 and perused the material on record.

(3.) Though several contentions have been urged by both sides in support of their respective claims, having regard to the fact that the impugned order merely directs the surveyor to re-measure the property and submit a fresh sketch and report, the impugned order cannot be said to have caused prejudice to the petitioner or the respondents or result in miscarriage of justice warranting interference by this Court as held by the Apex Court in the case of Radhey Shyam vs. Chhabi Nath & others - (2015) 5 SCC 453. However, since the appeal in R.A.No.33/2008 filed by the petitioner is pending before the 1st appellate court, the Surveyor is hereby directed to carry out the survey after notifying the parties and in the presence of parties and submit a fresh report, sketch etc., to the 1st appellate court before which, R.A.No.33/2008 is pending. Pursuant to the surveyor carrying out the survey work and submitting a report, sketch etc., in R.A.No.33/2008 before the 1st appellate court, both parties would be entitled to file their objections to the said report which shall be considered by the 1st appellate court in accordance with law. Immediately upon receipt of the report, sketch etc., of the surveyor and after considering the objections, if any, by the parties, the 1st appellate court shall proceed further and dispose of the appeal on or before 21/12/2023. All rival contentions on all aspects of the matter including the report, sketch etc., submitted by the surveyor are kept open and no opinion is expressed on the same. Liberty is also reserved in favour of the petitioner to suitably amend the memorandum of appeal and put forth additional grounds in relation to the fresh / new report, sketch etc., to be submitted by the surveyor.