PAMULA NARSAIAH Vs. PAMULA MURALI

JUDGEMENT

(1.) Though the notice was served on the respondents, they have not chosen to appear either in person or through an Advocate. Therefore, this Court has decided to dispose of Civil Revision Petition after hearing learned Counsel for the petitioner and on the basis of the material placed before this Court.

(2.) This Civil Revision Petition is filed by respondents 2 and 6/defendants 1 and 6 aggrieved by the order passed in I.A. No. 291 of 1997 in O.S.No. 89 of 1983 dated 19-11-1998 wherein the learned Junior Civil Judge, Bhongir, set aside the report of the Commissioner appointed by his predecessor in I.A.No. 793 of 1987 on the ground that the petitioner in the I.A.No. 291 of 1997 was not given opportunity before executing warrant for division of the property between the parties in the above suit.

(3.) The brief facts of the case are that second respondent filed O.S.No. 89 of 1983 for partition and separate possession of the plaintiff's l/3rd share in the suit schedule property. The suit against D-10 and D-11 was dismissed for non-payment of process ; and defendants 1 and 9 remained ex parte and therefore, a preliminary decree came to be passed on 2-7-1987 for partition of suit schedule property and division of the same into three equal shares and directed for allotment of one such share i.e. l/3rd share to the plaintiff. The plaintiff filed I.A. No. 793 of 1987 seeking appointment of Advocate Commissioner for working out the final decree and to demarcate the suit schedule land in pursuance of the preliminary decree. The Court appointed the Advocate Commissioner, Sri Ch, Venkatesham, who inspected the suit and executed the warrant of commissioner. He filed a report stating that he demarcated 'A' and 'B' schedule properties as per preliminary decree and plaintiff's share was fixed as shown in red colour with the assistance of M.C. Inspector. As per the said allotment, Ac. 4-15 guntas of land fell to the share of the plaintiff out of Ac. 13-04 guntas in the suit schedule survey number. The respondent-defendant No. 2 filed I.A. No. 1031 of 1994 in I.A.No. 793 of 1987 for appointment of Commissioner for the second time and division of 'A' and 'B' schedule properties as per the preliminary decree. The said application was dismissed on 9-8-1995 holding that no objections were filed to the report of the Commissioner and the final decree and the petition was closed and the second Commissioner cannot be appointed. Further, the petitioner therein has no locus standi to file the present petition for appointment of second commissioner as long as the report of the first Commissioner is in existence. If the petitioner-respondent No. 1 is aggrieved by the report of the first Commissioner, he should have filed objections to the report. The said report was not challenged and it has become final. Thereafter, the respondent No. 1 filed the present LA. for appointment of the second Advocate Commissioner on the ground that though the petitioner-respondent No. 1 was made a party in I.A.No. 793 of 1987, no notice was served and the objections were not filed. After hearing the arguments and considering the facts and circumstances of the case, the Court below allowed the LA. on the ground that the petitioner-respondent No. 1 was not given notice while executing the Court warrant and he was not given any opportunity to put forth his objections. It is further observed that the Commissioner has to divide properties into three equal shares as directed in the preliminary decree and the plaintiff can be allotted one such share out of three equal shares by the Court and the Commissioner cannot directly allot shares to the plaintiff. He has not fixed the shares of D-1 and D-2. In view of the above, the Court was satisfied that the report of the earlier Commissioner is bad for non-observance of the principles of natural justice and liable to be set aside. As the dismissal order in I.A.No. 1031 of 1994, it was observed that the respondent petitioner could maintain objections against the report of the Advocate commissioner and to seek appointment of another Commissioner. Aggrieved by the said order, present revision petition is filed.