IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTYEIGHTH DAY OF JULY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.4681 and 4686 of 2010 C.R.P.No.4681 of 2010 Between: G. Shashidhar .. Petitioner AND T. Narayana .. Respondents C.R.P.No.4686 of 2010 Between: G. Shashidhar .. Petitioner AND T. Narayana .. Respondents COMMON ORDER: As both the Civil Revision Petitions arise out of the interlocutory proceedings in the same suit and involve same questions of fact, they are being disposed of by this common order. In O.S.No.83 of 2005 pending on the file of the Court of Junior Civil Judge, Kollapur, a consent order was passed on 07- 06-2006 in I.A.No.199 of 2006 in I.A.No.8 of 2006 in O.S.No.83 of 2005 stating that both the counsel agreed to appoint a surveyor for demarcating the lands of both the parties and that in the circumstances, the Court was pleased to appoint a surveyor to demarcate the lands of both parties in the presence of Sri S. Baleeshwaraiah, Advocate Commissioner, who was directed to get demarcation of the lands of both parties through the surveyor and file his report before 10-07-2006. Later, the Advocate Commissioner appeared to have filed a memo into the Court on 30-10-2008 stating that the Assistant Director of Survey and Land Records, Mahabubnagar did not depute any surveyor as requested by him and therefore, the warrant could not be executed. On return of the warrant by the Advocate Commissioner, the trial Court appeared to have appointed the Mandal Surveyor, Kollapur as the Commissioner to demarcate the suit land by making a sketch of existing physical features by an order dated 27-11-2008 and thereafter, the plaintiff filed I.A.No.159 of 2009 in I.A.No.199 of 2006 in O.S.No.83 of 2005 requesting to amend the order dated 10-12-2008 directing demarcation of the suit land only but not the lands of both parties as ordered earlier in I.A.No.199 of 2006. That petition was rejected by an order dated 10-06-2009 stating that the Mandal Surveyor returned the warrant of commission and hence, cognizance of this petition cannot be taken. Against that order, the plaintiff preferred C.R.P.No.4686 of 2010 stating that the warrant ought to have been entrusted to another Surveyor for demarcation of the lands of both parties as ordered earlier, which demarcation will set at rest all the questions in controversy. Hence, the plaintiff desired that the rejection of I.A.No.159 of 2009 be reversed. While so, I.A.No.416 of 2009 was filed by the plaintiff requesting for appointment of Mandal Surveyor as Commissioner for demarcating the land of the defendant which request was resisted by the defendant through his counter and who requested that Mandal Surveyor or Advocate Commissioner may be appointed to demarcate the suit land only. The trial Court by an order dated 16-08-2010 took cognizance of the earlier events of appointment of an Advocate Commissioner and then a Mandal Surveyor, who filed his report on 10-06-2009 against which objections were filed. Without elaborating the reasons for its conclusions, the trial Court stated that the plaintiff is wilfully dragging on the matter without proceeding with the trial of the case, which was ripe for trial and hence, dismissed the petition directing payment of costs of Rs.500/- to the defendant. The plaintiff challenged the said order in C.R.P.No.4681 of 2010 contending that when both parties consented earlier for demarcating the lands of both parties, the warrant ought to have been re-entrusted to the Mandal Surveyor and desired the order to be reversed. Sri T.V.S. Kumar, learned counsel for the revision petitioner and Sri D.L. Pandu, learned counsel for the respondent in both the revision petitions are heard. The point for consideration is whether the demarcation of any properties by a Commissioner is in the interests of justice and if so, which properties? The affidavit in support of I.A.No.416 of 2009 shows that the dispute about the plaintiff occupying any portion of the land of the defendant was attempted to be clarified through the appointment of an Advocate Commissioner. The counter filed on behalf of the defendant also shows that the defendant is claiming 57 cents of his land to have been occupied by the plaintiff and the sketch map and claims of the plaintiff to be not tallying with the physical features of land. Demarcation of the lands of the plaintiff was considered necessary even by the defendant for determination of the dispute. Similarly, in I.A.No.199 of 2006, the defendant himself sought for demarcation of the lands through a Surveyor as there was boundary dispute between them in respect of the lands. Though the request of the defendant therein was confined to the land of the plaintiff, it was evident from the counter filed by the plaintiff therein that the primary dispute was about the plaintiff trying to encroach into the defendant’s land. The plaintiff also alleged the existence of a dividing bund between the lands of both parties. In view of the nature of the dispute and the conflicting contentions, both the parties themselves thought it appropriate to agree for the appointment of a Surveyor for demarcating the lands of both parties. Though it is true that for some reason or the other, the Advocate Commissioner or the Mandal Surveyor could not execute the warrant of commission and demarcate the lands of both parties, the dispute still remains to be adjudicated by the trial Court on merits and there cannot be said to be any change of circumstances since the earlier consent order passed by the Court considering the demarcation of the lands of both parties to be necessary for complete and comprehensive adjudication of the dispute between the parties. As rules of procedure are intended to be handmaids of justice and not to punish the parties for any technical lapses, it will be in the interests of justice for an effective and satisfactory adjudication of the dispute between the parties to again direct appointment of the Mandal Surveyor as the Commissioner for demarcation of the lands of both parties in the suit locality. The learned counsel for the revision petitioner relied on in this regard in V. Bikshapati Reddy v. Satyamma[1], wherein the learned Judge considered a similar question of appointment of a Commissioner with the consent of both parties and opined that such a consent order can be altered only when the parties to the said order consent for any modification or deviation. No such agreement for deviation or modification is discernable from the record, and therefore, again taking recourse to earlier consent order for demarcation of the lands will be perfectly justified. Therefore, the orders passed by the Junior Civil Judge, Kollapur in I.A.No.159 of 2009 in I.A.No.199 of 2006 in O.S.No.83 of 2005 on 10-06-2009 and in I.A.No.416 of 2009 in O.S.No.83 of 2005 on 16-08-2010 are set aside and the Mandal Surveyor is appointed as Commissioner for demarcating the lands of both parties as consented to by the parties on 07-06-2006. The Mandal Surveyor shall give notice to both parties before executing the warrant of commission and answer work memos filed before him. Both parties are hereby directed to appear before the Commissioner. The Commissioner’s fee shall be fixed by the trial Court in accordance with the rules and the Commissioner’s fee and all expenses for executing the warrant of commission shall be borne by the plaintiff irrespective of the result of the suit in view of the conclusion of the trial Court about the plaintiff not being diligent in the matter earlier. The Civil Revision Petitions are ordered accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 28-07-2011 Ksn [1] 2004 (4) ALT 415