MAKAM VENKATESH Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) Aggrieved by the order of the Principal Junior Civil Judge, Punganur in LA. No.1300/2000 in LA. No.381/1999 in A.S. No.56 of 1999 refusing to reissue the warrant to locate petition "A" to "D" schedule properties and measure correctly with reference to FMB or village sketch with the assistance of Deputy Inspector of Survey, RDO's office, the present revision is filed.

(2.) Initially acceding to the request of the petitioner, the Court below appointed an Advocate-Commissioner for the parties in LA. No.381/1999 and the Advocate-Commissioner in his report stated that as FMB or village sketch was not provided by the parties, he could not come to the correct conclusion regarding the measurement i.e., width of the road at point to point. Having come to know about the report, the petitioners filed the LA. No.1300/2000 seeking re-issuance of the warrant for identification of the properties and measure the land with reference to Field Measurement Book with the assistance of Deputy Inspector of Survey. The same was dismissed by the Court below by stating:

(3.) Heard the Counsel for the petitioners and the learned Government Pleader for arbitration. I have no manner of doubt in holding that the reasons given by the Court below in dismissing the application are not sound in law and the Court passed the order without knowing the scope and ambit of the enquiry to be conducted by the Advocate-Commissioner. With regard to the 1st reason I am rather astonished to see that this officer has gone to the extent of saying that the petitioner cannot question the order or direction given by the Advocate-Commissioner. It is not known under what provisions of law he came to the conclusion. It is always open to the parties to seek clarification of the orders more so judicial orders passed by the officials in furtherance of cause of justice. With regard to the 2nd reason given by the Court, it is true that it is open to the Commissioner to seek clarification or further instructions for execution of the warrant for rendering substantial justice between the parties. But, if the Commissioner, failed to do so, that does not preclude the parties who are likely to be affected by the orders of the Advocate- Commissioner to approach the Court and get appropriate orders for effective adjudication of the dispute. Hence, I do not find any merit in the 2nd reason given by the Court below. With regard to the 3rd reason the Court below says that the Advocate-Commissioner executed the warrant and filed the report. This observation was made by the Court below without looking into the report of the Advocate-Commissioner wherein he categorically stated that in the absence of the FMB or village map provided by the petitioners he could not come to a correct conclusion regarding measurements like the width of the road at point to point. From this, it cannot be said that the warrant was executed by the Advocate-Commissioner in its true spirit. With regard to the 4th reason the Court below observed that even the warrant is re-issued the prayer shall be beyond the scope of the prayer in LA. No.381/89 and something more cannot be added beyond the scope of original warrant. Even according to this officer, he issued warrant to the Advocate- Commissioner to identify the suit schedule properties "A" to "D" to know physical features and measure the suit schedule properties and draw a sketch with reference to the work memo to be filed at the time of execution of the warrant and answer such other points raised at the time of inspection and the Advocate-Commissioner's report says that in the absence of FMB or Village map the conclusions arrived at by him with regard to the measurements are not correct and they are only approximate in nature. It is beyond anyone's comprehension how the re-issuance of the warrant to measure the suit schedule properties with reference to FMB would go beyond the scope of the prayer in the earlier LA. Any measurements of the land should be by a known method and as per the provisions of Survey and Settlements Act, It is well settled that the physical features of particular land will be properly reflected in FMB and it will be the basis for deciding any disputes with regard to the identity of the properties and extent of the land etc. Hence, this reason also has no legs to stand. Regarding the 5th reason, the petitioner clearly stated that the Advocate-Commissioner may be directed to receive the work memo and answer all related matters not covered by the warrant issued for the parties. Hence, it is for the Advocate-Commissioner to decide whether any issue raised in the work memo is within the scope or beyond the scope of the warrant and after the Advocate- Commissioner filed his report, the parties are at liberty to file objections to the report and then only the Court has to decide whether any issue raised in the work memo is beyond the scope of the warrant issued or not, but not at this stage.