Smt. Asha Ramesh Ganiga vs K. Upendra Achar

Anand Byrareddy, J.—The Appellant was the Plaintiff before the trial Court. The Plaintiff having complained of encroachment over the suit property and the encroached port ion being defined under Schedule "B" to the suit schedule, the trial Court had decreed the suit after contest, on the basis of a survey report. The said survey having been carried out in the presence of parties, the Respondent-Defendant questioned the correctness and accuracy of the survey report on the ground that the Defendant�s property was not measured before preparation of the report, which the surveyor ought to have done in accordance with the Field Measurement Book. On that ground the appeal having been filed before the lower appellate Court, the lower appellate Court while observing the admission by the surveyor to the effect that the Defendant�s property was not measured prior to the preparation of the survey report held, with reference to the decided cases, that such a report cannot form the basis as regards measurement as it would, be inaccurate as it was not in accordance with the field measurement. It is on this sole ground that the appeal was allowed. The same is questioned before this Court in this second appeal.

Since the dispute turns on this narrow compass, it is not clear as to how the lower, appellate Court did not find it necessary for appoint yet another surveyor since the Respondent herein was ready and willing to remove any encroachment, if there was any encroachment, on a report being filed by the surveyor in accordance with law. When this was the manner in which the dispute could have been resolved, it is not clear as to how the lower appellate Court did not deem it fit to appoint another surveyor to obtain survey report in accordance with law. Which would have properly resolved the dispute between the parties. Therefore, notwithstanding the several substantial questions of law sought to be raised, it would be suffice if the matter is remanded to the lower appellate Court in the interest of justice with a direction to the lower appellate Court to appoint a surveyor to survey the properties and to furnish-the report as to the alleged encroachment. The lower appellate Court shall erasure that it is in accordance with the Field Measurement Book in (accepting such a report and to decide die case in accordance with law.

Accordingly, this appeal is allowed and the lower appellate Court is directed to appoint a surveyor in terms as above and issue such directions as may be necessary in order that the report may be filed and permit the parties if they want to tender evidence of seek to challenge the report, if any, and thereafter decide the matter in accordance with law. It is emphasised that it would be necessary for the lower appellate Court to direct the surveyor to be appointed, to measure both the properties of the Plaintiff as well as the Defendant, in filing the report as to the alleged encroachment.