P. Mani Vs. M.V. Madhava Reddy - Court Judgment

Excerpt:
- - at any rate, the respondent did not complain of any violation of any order passed by the court earlier or any infraction on the part of the petitioner.orderl. narasimha reddy, j.1. the petitioner claims to be the owner of the land in survey no. 331/7 of chittoor revenue village, admeasuring ac.0.11 cents. the respondent in turn is the owner of neighbouring land in survey no. 346 on the northern side. the petitioner is raising grass to feed his cows in the said land. when the defendant started objecting for raising grass, the petitioner filed o.s. no. 1219 of 2002 in the court of iii additional junior civil judge, chittoor, for perpetual injunction.2.thepetitionerfiledl.a.no.1277of2003 for appointment of a commissioner to note the physical features, in the context of assessment of damage or inconvenience, the respondent is complaining of. the i.a., was ordered and ultimately the commissioner submitted a report.3. the commissioner appointed in i.a. no. 1277 of 2003 was required to take assistance of the mandal surveyor, for identification of the suit schedule property. in the report, an observation was made to the effect that the mandal surveyor expressed his inability to measure the land unless the whole grass is removed. the commissioner, however, reported that he was able to identify the land with the boundaries furnished in the plaint and submitted his report.4. the respondent filed i.a. no. 885 of 2004 with a prayer to direct the petitioner herein to remove the grass to enable the mandal surveyor to measure and identify the suit schedule property. the petitioner resisted the application, but, through its order, dated 8-9-2004, the trial court ordered the i.a. hence, the present civil revision petition.5. heard the learned counsel for the petitioner. though the respondent was served with notice, he has not chosen to enter appearance.6. left to himself, the respondent did not feel the necessity of claiming any relief against the petitioner. it is the latter that filed the suit for relief of perpetual injunction. at the instance of the petitioner, a commissioner was appointed to note the physical features and the commissioner was required to take assistance of the mandal surveyor. the necessity for the commissioner to take the assistance of the mandal surveyor would have arisen, only if there was any difficulty or complication, in the matter of identifying the suit schedule property with reference to the boundaries. though the commissioner is said to have observed that the entire grass must be removed to enable him to measure the land, in the limited context of executing warrant, the commissioner did not find any difficulty in localising the suit schedule property and submitting the report.7. the respondent took clue from the observation made by the commissioner in his report as to the insistence of the mandal surveyor, and filed the instant i.a., to direct the petitioner herein to remove the grass.8. though it is permissible for a defendant in a suit to seek appointment of a commissioner, the courts are required to be very cautious in acceding to such requests. the reason is that it is the plaintiff that has to decide the course of his suit. at any rate, the respondent did not complain of any violation of any order passed by the court earlier or any infraction on the part of the petitioner. when the commissioner was able to localise the land and execute the warrant, it was not at all permissible for the respondent to have insisted upon removal of grass. in a way, he wanted to achieve his object of preventing the petitioner from raising grass, through indirect means. this court finds that the order under revision cannot be sustained at all.9. the civil revision petition is accordingly allowed and the order under revision is set aside. no order as to costs.

Judgment:
ORDER

L. Narasimha Reddy, J.

1. The petitioner claims to be the owner of the land in Survey No. 331/7 of Chittoor Revenue Village, admeasuring Ac.0.11 cents. The respondent in turn is the owner of neighbouring land in Survey No. 346 on the northern side. The petitioner is raising grass to feed his cows in the said land. When the defendant started objecting for raising grass, the petitioner filed O.S. No. 1219 of 2002 in the Court of III Additional Junior Civil Judge, Chittoor, for perpetual injunction.

2.Thepetitionerfiledl.A.No.1277of2003 for appointment of a Commissioner to note the physical features, in the context of assessment of damage or inconvenience, the respondent is complaining of. The I.A., was ordered and ultimately the Commissioner submitted a report.

3. The Commissioner appointed in I.A. No. 1277 of 2003 was required to take assistance of the Mandal Surveyor, for identification of the suit schedule property. In the report, an observation was made to the effect that the Mandal Surveyor expressed his inability to measure the land unless the whole grass is removed. The Commissioner, however, reported that he was able to identify the land with the boundaries furnished in the plaint and submitted his report.

4. The respondent filed I.A. No. 885 of 2004 with a prayer to direct the petitioner herein to remove the grass to enable the Mandal Surveyor to measure and identify the suit schedule property. The petitioner resisted the application, But, through its order, dated 8-9-2004, the trial Court ordered the I.A. Hence, the present civil revision petition.

5. Heard the learned Counsel for the petitioner. Though the respondent was served with notice, he has not chosen to enter appearance.

6. Left to himself, the respondent did not feel the necessity of claiming any relief against the petitioner. It is the latter that filed the suit for relief of perpetual injunction. At the instance of the petitioner, a Commissioner was appointed to note the physical features and the Commissioner was required to take assistance of the Mandal Surveyor. The necessity for the Commissioner to take the assistance of the Mandal Surveyor would have arisen, only if there was any difficulty or complication, in the matter of identifying the suit schedule property with reference to the boundaries. Though the Commissioner is said to have observed that the entire grass must be removed to enable him to measure the land, in the limited context of executing warrant, the Commissioner did not find any difficulty in localising the suit schedule property and submitting the report.

7. The respondent took clue from the observation made by the Commissioner in his report as to the insistence of the Mandal Surveyor, and filed the instant I.A., to direct the petitioner herein to remove the grass.

8. Though it is permissible for a defendant in a suit to seek appointment of a Commissioner, the Courts are required to be very cautious in acceding to such requests. The reason is that it is the plaintiff that has to decide the course of his suit. At any rate, the respondent did not complain of any violation of any order passed by the Court earlier or any infraction on the part of the petitioner. When the Commissioner was able to localise the land and execute the warrant, it was not at all permissible for the respondent to have insisted upon removal of grass. In a way, he wanted to achieve his object of preventing the petitioner from raising grass, through indirect means. This Court finds that the order under revision cannot be sustained at all.

9. The civil revision petition is accordingly allowed and the order under revision is set aside. No order as to costs.