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2005 DIGILAW 1083 (MAD)

G. Elumalai v. Mariammal

2005-07-18

R.BANUMATHI

body2005
Judgment :- This Civil Revision Petition arises out of the Order dated 19.01.2004 made in I.A.No.2604 of 2003 in O.S.No.172 of 2003 by the District Munsif, Poonamallee, partly allowing the Petition filed under Order 26 Rule 9 C.P.C appointing the Advocate Commissioner to note down the physical features of the Suit Property. The Defendant is the Revision Petitioner. 2. O.S.No.172 of 2003:- The Suit Property relates to Door No.4, Plot No.72, situated in S.No.215 in Valasaravakkam Village. Case of the Plaintiff is that she has purchased the Suit Property from one Jayarama Mudaliar under a Sale Deed dated 26.01.1982. After the purchase, the Plaintiff was in possession and enjoyment of the entire lands. The Defendant is the Son of the Plaintiff. The Plaintiff settled the Suit Property in favour of the Defendant by a Settlement Deed dated 24.04.1985. The Plaintiff has two Sons and Three Daughters and they were all living together. Even though Settlement Deed was executed by the Plaintiff to the Defendant, the Plaintiff did not deliver the Suit Property to the Defendant. The Building was under construction stage. Though in the Settlement Deed it is stated that the possession was handed over, actual possession was not handed over to the Defendant. After the Defendant’s marriage, the Defendant started giving trouble to the Defendant. The Defendant filed the Suit in O.S.No.123 of 2000 on the file of Sub-Court, Poonamallee against the Plaintiff and others. Likewise, the Defendant has also filed O.S.No.125 of 2002 and 426 of 2002 on the file of the District Munsif court, Poonamallee against the Plaintiff and others. Since the Defendant has been repeatedly causing trouble to the Plaintiff, the Plaintiff has cancelled the Settlement Deed dated 24.04.1985. Thus, the Settlement Deed in favour of the Defendant is duly cancelled. On 24.07.2003, the Defendant has attempted to lock the premises and attempted to evict the Plaintiff and the same was prevented by the Plaintiff with great difficulty. Hence, the Plaintiff has filed the Suit for Permanent Injunction and also for other reliefs. 3. Denying the allegations in the Plaint, the Defendant has filed the Written Statement, tracing his Title to the Settlement Deed dated 24.04.1985. According to the Defendant, cancellation of the Settlement Deed is not valid and not binding on the Defendant and the Defendant is ignoring the Cancellation Deed. 3. Denying the allegations in the Plaint, the Defendant has filed the Written Statement, tracing his Title to the Settlement Deed dated 24.04.1985. According to the Defendant, cancellation of the Settlement Deed is not valid and not binding on the Defendant and the Defendant is ignoring the Cancellation Deed. Since the Defendant’s younger Brother Venkatesan attempted to interfere with the Defendant’s possession, the Defendant had filed the Suit for Permanent Injunction in O.S.No.426 of 2002. At the time when the Property was settled in favour of the Defendant, it was only a vacant site. Only the Defendant had put up the construction over the same. Since the Plaintiff is not in possession and enjoyment of any portion of the Suit Property, the Suit for Injunction is not maintainable. 4. I.A.No.2604 of 2003:- This Application has been filed by the Plaintiff for Appointment of Advocate Commissioner to note down the physical features in the Suit Property and to note down that the Plaintiff is living in the Suit Property. According to the Plaintiff, she has been residing in the Suit Property. The Defendant is trying to throw her away from the property and hence, the Appointment of Advocate Commissioner to note down her possession and enjoyment of the property is essential. 5. The Revision Petitioner / Defendant has resisted the Application contending that there cannot be Appointment of Advocate Commissioner to note down the factum of possession of the Suit Property. Stating that the Application is not maintainable, the Defendant has filed elaborate Counter Statement, contending that the Suit has been filed only at the instigation of his younger Brother Venkatesan. 6. Upon consideration of the averments in the Affidavit and the Counter Statement and the contentions of the both parties, learned District Munsif partly allowed the application appointing Advocate Commissioner to note down the physical features. In its view, the Appointment of Advocate Commissioner to note down the physical features and the Report thereon would be necessary to determine the issues involved in the case. Learned District Munsif was of the view that there cannot be appointment of Advocate Commissioner to note down the factum of possession over the Suit Property. 7. Aggrieved over the Appointment of Advocate Commissioner, the Revision Petitioner has preferred this Civil Revision Petition. Learned District Munsif was of the view that there cannot be appointment of Advocate Commissioner to note down the factum of possession over the Suit Property. 7. Aggrieved over the Appointment of Advocate Commissioner, the Revision Petitioner has preferred this Civil Revision Petition. Drawing the attention of the Court to the averments made in the Affidavit, learned counsel for the Revision Petitioner / Defendant has submitted that when the Commissioner has been sought to be appointed to note down the factum of possession, the Trial Court erred in partly allowing the Application. Submitting that in the light of the averments in the Affidavit alleging that the Plaintiff is in possession and enjoyment of the Suit Property, it is contended that the Commissioner ought not to have been appointed. Pointing out that the Suit in O.S.No.172 of 2003 is a Suit for Bare Permanent Injunction, learned counsel for the Revision Petitioner contended that in the Suit for Permanent Injunction, noting down the physical features of the Suit Property is not necessitated and that the parties are only to adduce the proper evidence in support of their contention. 8. Despite issuance of Notice number of times, the Respondent / Plaintiff (though served) has not entered appearance in this Civil Revision Petition. The contention of the Respondent / Plaintiff in the lower Court has been taken into consideration for the disposal of this Revision Petition. 9. The Suit in O.S.No.172 of 2003 is for Permanent Injunction. The short point that arises for consideration in this Civil Revision Petition is whether in a Suit for Permanent Injunction, the Trial Court was right in appointing Advocate Commissioner to note down the physical features and whether the Impugned Order suffers from material irregularity warranting interference. 10. Mother and the Son are pitted against each other in a number of litigations. The Plaintiff – Mother has settled the Suit Property in favour of her Son – Defendant by a Settlement Deed Dated 24.04.1985. According to the Plaintiff, though the Settlement Deed was executed, possession was not delivered to the Defendant and the Plaintiff continued to be in possession and she carried on with the Construction work, which was in progress. Thereafter, the Defendant has filed O.S.No.123 of 2000 on the file of Sub-Court, Poonamallee against his Mother and others. According to the Plaintiff, though the Settlement Deed was executed, possession was not delivered to the Defendant and the Plaintiff continued to be in possession and she carried on with the Construction work, which was in progress. Thereafter, the Defendant has filed O.S.No.123 of 2000 on the file of Sub-Court, Poonamallee against his Mother and others. Likewise, he has also filed two other Suits in O.S.No.125 of 2002 and 426 of 2002 on the file of the District Munsif court, Poonamallee against his Mother and others. In view of the differences between the Mother and Son, the Plaintiff has cancelled the Settlement Deed dated 24.04.1985. The parties are entangled in several rounds of litigations. Hence the order of Appointment of Advocate Commissioner is to be sparingly exercised. 11. Pursuant to the Settlement Deed, the Defendant claims to be in possession of the Suit Property and the house thereon. Possession of the Defendant is denied by the Plaintiff. In the Application for Appointment of Advocate Commissioner, the Plaintiff has prayed to appoint the Advocate Commissioner "...to note down the physical features in the Suit Property and to note down that she is living in the Suit Property ....”. The Plaintiff has filed the Suit for Permanent Injunction, claiming to be in possession of the Suit Property. According to the Plaintiff, the Settlement Deed was not acted upon and that notwithstanding the Settlement Deed, she continues in possession of the Suit Property. Possession of the Plaintiff is denied by the Defendant. Thus the possession of the Suit Property is the main issue involved in the Suit. 12. Alleging that the Settlement Deed was not acted upon, in Paragraph 5 of the Plaint, the Plaintiff has alleged as follows: ".... eventhough in respect of the Suit Property Settlement Deed was executed the Plaintiff did not deliver the property to the Defendant. As a matter of fact, at that time, the building was under Construction stage. Eventhough in the Settlement Deed, it is stated that possession was handed over, actual possession was not handed over.....” Thus, the main point to be adjudicated upon is the possession of the properties. While being so, the Commissioner cannot be sought to be appointed to note down the factum of possession. 13. Learned District Munsif has partly allowed the Application appointing the Advocate Commissioner to note down the physical features. While being so, the Commissioner cannot be sought to be appointed to note down the factum of possession. 13. Learned District Munsif has partly allowed the Application appointing the Advocate Commissioner to note down the physical features. If the Advocate Commissioner is appointed to note down the physical features, the factum of possession would also be incidentally be brought out. The decision on the material issue regarding the possession can never be left to the Commissioner. The factum of possession and the physical features thereon are to be proved only by adducing the evidence and it is for the Court to adjudicate upon the same. The question regarding the possession and the physical features are to be proved only by adducing appropriate evidence. 14. Assailing the Impugned Order, learned counsel for the Revision Petitioner has contended that the Advocate Commissioner cannot be appointed to note down the physical features since the Suit is one for Permanent Injunction. The object of appointing Advocate Commissioner is not to gather evidence; but to assist the Court by adducing best possible evidence. If really, the Plaintiff is in possession of the Suit Property, she could very well prove the same by adducing the Electricity Consumption Charges, House Tax Receipts, Payment of Water Charges and such other documents. Though the Plaintiff has sought for Appointment of Advocate Commissioner to note down the factum of possession, learned District Munsif restricted the order in appointing the Advocate Commissioner only to note down the physical features. The Suit for Permanent Injunction depends upon the Possession of the Plaintiff. Only if the Plaintiff convincingly proves the Possession, she is entitled for the relief and there cannot be appointment of Advocate Commissioner to gather evidence. Learned District Munsif has not taken note of the number of the litigations between the parties. In the facts and circumstances of the case and taking into consideration the number of litigations between the parties, the Impugned Order appointing the Advocate Commissioner cannot be sustained and the same is liable to be set aside. 15. For the foregoing reasons, the order dated 19.01.2004 passed by the District Munsif, Poonamallee in I.A.No.2604 of 2003 in O.S.No.172 of 2003 is set aside and this Civil Revision Petition is allowed. In view of the relationship of the parties and other circumstances, there is no order as to costs.