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2003 DIGILAW 1062 (MAD)

K. S. Ganapathy and another v. K. G. Mani

2003-07-15

K.KULASEKARAN

body2003
ORDER: The defendants 1 and 2 are the petitioners in this revision. The respondent/ plaintiff has filed the suit in O.S. No. 1418 of 2002 for partition on the ground that on 15.3.2000 plaintiff and defendants have entered into an unregistered family arrangement in the presence of mediators thereby the properties shown in A schedule in the plaint were divided among them by metes and bounds, the property was allotted to plaintiff is fully mentioned in Schedule B and the remaining properties in Schedule A were allotted to the defendants. The respondent herein has filed an application I.A. No. 1457 of 2002 under O.26, Rule 9 along with the suit for appointment of advocate commissioner to inspect the property and to file his report with regard to the physical features of the suit property in existence. The trial Court, after affording opportunity to both sides allowed the petition and appointed an advocate commissioner on 13.1.2003. Aggrieved by the same, the present revision has been filed. 2. Mr.Shivakumaran, learned counsel appearing for the petitioner submitted that the respondent has sought the remedy of appointment of an advocate commissioner only to prove his possession; that the alleged possession cannot be proved with the aid of the advocate commissioner; that the Court below failed to consider the averments made by the respondent herein in his pleadings and the respondent has not made out a case for appointment of a commissioner and prayed for setting aside the order of the Court below. 3. The learned counsel appearing for the petitioner relied on the following decisions in support of his case: (i) R.Satyanarayana Rao and three others v. M.K.Manoharan alias K.Manoharan and another, (2000)3 L. W. 787, wherein in paras. 11 and 15 it was held thus: "11. When the identify of the property is not a matter in issue, and when the suit is also not one filed for recovery of property, I do not think there is any necessity to issue a Commission, and that too, when the question of issuing ryotwari patta is to be decided on the basis of documentary evidence produced before the Court. Again, the relief prayed for in the application for appointment of Advocate Commissioner is to note down the physical features of 6th and 7th defendant’s possession of the entire suit schedule property. Again, the relief prayed for in the application for appointment of Advocate Commissioner is to note down the physical features of 6th and 7th defendant’s possession of the entire suit schedule property. When the plaintiff himself has admitted that defendants 6 and 7 are in possession, what is the necessity to note down the physical features of the property in the possession of defendants 6 and 7. 15.......When a Commissioner has been appointed unnecessarily, and when the lower Court has passed that Order without taking into considerations the pleadings in the case, and without considering the fact whether such issuance is necessary, it can certainly be said that the Court has acted illegally. If I am to hold that the revision is not maintainable, it would amount to admitting an irrelevant piece of evidence. The lower Court has passed the order ignoring the relevant provisions of Law." In this case, this Court held that when the identity of the property is not a matter in issue, and when the suit is also not one filed for recovery of property, there is no necessity to issue a commission. If the Court passes an order without taking into consideration of the pleadings in the case and without considering whether such issuance is necessary it can certainly be said that the Court has acted illegally. (ii) Devadoss v. A.Duraisingh,(2002)3 C.T.C. 748, wherein in para 8 it was held thus: "8.......Now in the present case also, the plaintiffs sought the appointment of an advocate commissioner. Only for the purpose of making a roving enquiry with respect to the person in the house and also whether they have got cable connection and from whom they have got the connection. The Advocate Commissioner cannot be used for such fact finding purposes and as such, the order passed by the Court below is not sustainable under law. It is always open to the decree holder to examine the concerned persons as witnesses and prove as to how, and in what manner they got the cable connection. Hence, the point is answered accordingly." In this case, this Court held that the Court cannot appoint commissioner to find out physical possession of parties by making roving enquiry of persons in house who got cable connection. 4. Now we look into the provisions of O.26, Rule 9, C.P.C., which runs as follows: "9. Hence, the point is answered accordingly." In this case, this Court held that the Court cannot appoint commissioner to find out physical possession of parties by making roving enquiry of persons in house who got cable connection. 4. Now we look into the provisions of O.26, Rule 9, C.P.C., which runs as follows: "9. Commissions to make local investigations: In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules." 5. It is the case of the respondent/ plaintiff that by unregistered family arrangement dated 13.3.2000, properties mentioned in the plaintiff schedule were partitioned by metes and bounds. It is alleged by the respondent/ plaintiff that he requested the defendants to execute the registered partition deed in his favour but they refused to do so, hence the suit. 6. The plaintiff has submitted before the trial Court that consequent to the said family arrangement, he has been cultivating the lands, which comes to his share. Now, he has raised sugarcane in the lands allotted to him. In order to prove that the parties are in separate possession and enjoyment of their respective share of the suit property, a Commissioner has to be appointed with a direction to file a report showing the physical features, which according to him will help the Court for better adjudication. The Defendants contested the application on the ground that appointment of advocate commissioner has been sought for by the plaintiff only to prove his possession which cannot be done by appointment of an advocate commissioner and the factum of possession is not a matter which a commissioner can decide. The Court below sustained the claim of the respondent herein and appointed the advocate commissioner as prayed for. 7. The local investigation is to elucidate any point which is left doubtful on the evidence taken before the Court. The Court below sustained the claim of the respondent herein and appointed the advocate commissioner as prayed for. 7. The local investigation is to elucidate any point which is left doubtful on the evidence taken before the Court. The object of 0.26, Rule 9 is not so much to collect evidence which can be taken in Court, but to obtain evidence which is peculiar in nature and it can only be had on the spot. It is the discretion of the Court to order a local investigation or not. However the Court is not bound to order it in all the cases. The discretion has to be exercised in a judicious and sound manner and not whimsically or capriciously. Where the controversy of possession between the parties relates to area of land or identification of location of an object or land, local investigation is essential, requisite, necessary and proper at an early stage of the suit. 8. It is the case of the respondent herein that consequent to the unregistered partition deed, the schedule B mentioned property was allotted to him and delivery was also effected by metes and bounds and the allottes are in possession and enjoyment of the same. The application for appointment of an advocate commissioner was filed along with the suit. Hence, the judgment relied on by the counsel for petitioner is not applicable to this case. The report of the advocate commissioner can be used only for the limited purpose of appreciating the evidence which the parties have let with reference to what the person saw on the site when he inspected the property. The report is not in any way binding on the Court and the Court can arrive at its own conclusion even at variance of such report. 9. In this case, though the Court below has not passed detailed order, it has allowed the petition by exercising its discretionary power judiciously. Interference of discretionary power exercised by the lower Court shall be done only in exceptional circumstance. In this case, I do not find any such exceptional circumstance to interfere with. 10. Hence, the order passed by the Court below is confirmed. The revision is dismissed.