IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD MONDAY, THE TWENTY FIRST (21ST) DAY OF FEBRUARY, TWO THOUSAND AND ELEVEN Present: THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5286 of 2008 Between: Kadiyala Yedukondalu … Petitioner And: P. Suryanarayana … Respondent THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5286 of 2008 ORDER: This revision is directed against the order dated 06.08.2008 in ATA No.1 of 2005 on the file of the III Additional District Judge, Kakinada, wherein the said appeal filed by the respondent herein was set aside and the order dated 29.11.2004 in ATC No.33 of 1999 on the file of the Special Officer cum Principal Junior Civil Judge, Kakinada, was dismissed. 2. Heard both sides. Perused the record. 3. The petitioner herein is the landlord. He filed ATC No.33 of 1999 against the respondent for eviction, under Section 13 of A.P. (Andhra Area) Tenancy Act, from the schedule land of Ac.1.30 cents of Bhavaram village. According to the petitioner, the respondent highhandedly committed the acts of waste in the schedule land by digging pits and selling away the earth and the respondent so far sold away earth of 40 to 50 carts load. The respondent filed counter, denying the allegation of committing acts of waste and further contending that the Commissioner visited the schedule land on 04.07.1999 and noted the physical features and field report in to the Court, which would falsify the contention of the petitioner. He would further contend that the main intention of the petitioner is to some how evict the respondent, though the respondent is regularly paying maktha. 4. During enquiry, PWs.1 and 2 were examined and Exs.A.1 and A.2 were marked on behalf of the petitioner. RWs.1 and 3 were examined and no documents were marked on behalf of the respondent. The evidence of RW.2 was eschewed from consideration as he did not tender himself for cross-examination. The learned Junior Civil Judge, allowed the petition directing eviction of the respondent within a period of two months. Aggrieved by the same, the respondent preferred appeal ATA No.1 of 2005. By impugned order, the learned Additional District Judge, allowed the appeal and set aside the order of eviction passed by the learned Junior Civil Judge. Hence, the present revision by the landlord. 5. The only ground on which the petitioner seeks eviction of the respondent from the schedule land is that the respondent is committing acts of waste by digging earth and selling away carts load from the schedule land. PW.1 is also admittedly cultivating the land situated adjacent to the schedule land. He would further admit that as part of the cultivation operations, land would be ploughed and during course of earth work, levels would have to be adjusted for free flow of water and digging of pits for the purpose of leveling is normal feature. Though the petitioner alleges that the respondent has dug the earth and selling away 40 to 50 carts load, he has not disclosed particulars as to when and to whom such huge quantity of earth was sold. PW.2 on the other hand admitted that the respondent did not commit any acts of waste or loss in respect of the schedule land. Thus, the testimony of PW.2 cuts the root of the petitioner’s case. 6. An advocate commissioner was appointed to make local inspection and he filed a report with a plan. As per the Commissioner’s report and plan, there is one pit measuring 6” in depth, 9’.4” length and 4” width and that the earth was not removed from the spot. The Commissioner’s plan also shows that the pits are of depth of only 6 to 9”. Curiously, the Commissioner also noticed existence of pits in the land, which is in possession of the petitioner also adjacent to the schedule land. The trial Court has noticed that the entire earth, if removed from the pits as noted by the Commissioner in the schedule land would not be more than one cart load. The allegation of the petitioner that the respondent has dug pits to such extent and removed 40 to 50 carts load of earth, therefore, remains totally unsubstantiated. Except the self testimony of PW.1, there is no other evidence in support of his contention and the only other witness examined by him is PW.2, who did not support the case of the petitioner. The report and plan filed by the Advocate Commissioner would also negative the contention of the petitioner regarding the alleged acts of waste. The appellate Tribunal has therefore rightly held that the allegation of committing acts of waste in digging pits and selling away the earth is not duly established and in view of the Commissioner’s report and plan and other evidence on record, the finding of the Special Officer cum Principal Junior Civil Judge, is unsustainable. The impugned order passed by the learned Additional District Judge setting aside the order of eviction passed by the Special Officer-cum-Principal Junior Civil Judge, does not call for any interference by this Court. 7. In the result, the civil revision petition is dismissed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 21.02.2011 bss