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2003 DIGILAW 52 (MAD)

Ganesa Naicker v. Subbiah Thevar & Others

2003-01-14

A.KULASEKARAN

body2003
Judgment :- The Plaintiff in O.S. No. 54 of 1998 on the file of the District Munsif, Srivilliputhur is the revision petitioner. The petitioner has filed a suit for declaration that the 3rd Schedule property absolutely belonged to him and also for a consequential relief of permanent injunction restraining the respondents herein and others from in any way obstructing the construction of compound wall put up by the Petitioner in the 3rd schedule property. The Petitioner has also filed I.A. No. 78 of 2002 for appointment of advocate commissioner to inspect the suit property, note down the physical features and to take measurements with the assistance of Taluk surveyor, which was dismissed by the trial court. Aggrieved by the said order passed by the court below, the present revision has been preferred. 2. Mr. Thirunavukkarasu, learned counsel appearing for the petitioner submitted that the petitioner has purchased the first schedule property under a registered sale deed dated 09-11-1972; that ever since the date of purchase, the petitioner is in possession and enjoyment of the property; that the third schedule property is part of the same; that the respondents restrained the petitioner from putting up compound wall in the 3rd schedule property, which forms part of 1st schedule property; that the alleged measurement taken with the help of surveyor on 20-11-1997 and laying boundary stones were not with his consent; that the Court below erred in dismissing the petition on the ground that Surveyor has already taken measurement and laid boundary stones with the consent of the petitioner; that the trial court wrongly stated that the suit is one for permanent injunction as such no advocate Commissioner is required; that the trial court ought to have appointed an advocate commissioner which would reduce the evidence of the parties and also help the Court to give an effective adjudication and prayed for setting aside the impugned order passed by the trial Court. 3. Mr. 3. Mr. Nedunchezhian, learned Counsel appearing for the respondents submitted that the petitioner has no right in the 3rd schedule property namely pathway; that with the help of Surveyor, the plaintiff's property was measured on 20-11-1997 and Survey stones were also laid with his consent, while so the illegal attempt of the petitioner to put a compound wall on the pathway was objected to by the respondents; that the case has come up for hearing on 08-03-1999 for trial and it was dismissed for default; that on 10-08-2001, for the second time, the suit was dismissed for default; that the application for appointment of an advocate commissioner was filed two years after the institution of the suit; that the trial court after careful consideration of the case has rightly passed the impugned order dismissing the application and prayed for dismissal of the revision. 4. The trial court has dismissed the petition on the ground that the petitioner's property was measured on 20-11-1997 and boundary stones were also demarcated by laying stone, which was suppressed by the petitioner in his petition for appointment of advocate commissioner and the suit filed by the petitioner is only for bare injunction as such the same can be decided by the available documents and no advocate commissioner is required. 5. It is seen from the findings of the trial court that it failed to note the averments of the petitioner that he allegedly made arrangements to put up a compound wall in the third schedule property, which is part and parcel of his first schedule property purchased under sale deed dated 09-11-1972. The trial court also erroneously found that survey stones were laid and the property was measured by the surveyor on 20-11-1997 with the consent of the petitioner. It is also wrongly observed by the trial court in the impugned order that the suit is only for a bare injunction as such the available documents are sufficient to decide the issues involved in the case and no advocate commissioner is required. The reason assigned by the trial court for dismissing the petition is unsustainable in law. 6. It is also wrongly observed by the trial court in the impugned order that the suit is only for a bare injunction as such the available documents are sufficient to decide the issues involved in the case and no advocate commissioner is required. The reason assigned by the trial court for dismissing the petition is unsustainable in law. 6. As contemplated under Order 26 Rule 9 CPC, an Advocate Commissioner can be appointed for the purpose of elucidating any matter in dispute, or for ascertaining the market value of any property or the amount of any mesne profits or damages or annual net profits, the Court may issue commission to such persons as it thinks fit for directing him to make such investigation and to report thereon to the Court. 7. In this case, the petitioner has categorically stated in his petition before the Court below that 3rd schedule property situate in the Southern portion of the first Schedule property, which is part and parcel of the first schedule property and the respondents herein have falsely made a claim that they have right over the third schedule property and hence it is absolutely warranted to appoint an advocate commissioner. The trial court without proper consideration of averments has dismissed the said application by observing that the suit is only for a bare injunction and no advocate commissioner is required. The trial court also further erred in observing that the measurements were taken and survey stones were laid with the consent of the petitioner, in the absence of any valid evidence. Though the discretion to appoint an advocate commissioner is vested with the Court, it shall exercise the same in a judicial manner and not arbitrarily. 8. Hence, the impugned order passed by the trial court is set aside. The Revision is allowed. No costs. Both the parties are directed to cooperate with the trial court for speedy disposal of the suit.