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2005 DIGILAW 1091 (MAD)

N. Venkatesan & Others v. V. Muthusamy & Others

2005-07-18

R.BANUMATHI

body2005
Judgment :- This Revision is preferred against the order of Principal District Munsif, Bhavani, dated 13-03-2003 made in I.A.No. 92 of 2003 in O.S.No.356 of 2002, dismissing the petition filed under Or.26 R.9 C.P.C. refusing to appoint an Advocate Commissioner. The Defendants 2 to 6 are the Revision Petitioners. 2. The relevant facts for disposal of this Revision Petition could briefly be stated thus:- a)O.S.No. 356 of 2002 :- The suit properties relate to 'A' and 'B' schedule properties in Chinnapuliyur Village and Jambai Village, Bhavani Taluk. The Case of the Plaintiffs is that the Plaintiffs purchased the suit properties by Sale Deed dated 24-01-2001. The suit properties are the agricultural lands. 'B' schedule properties are located immediately on the North of the properties described in 'A' schedule. North of 'B' schedule properties is the Bhavani river in R.S.No. 262 of Jambai Village. The Plaintiffs are in possession and enjoyment of the suit properties. Due to rain and flood soil erosion, rich alluvial soil is dumbed on 'B' schedule properties. Due to flood and natural causes, the properties in 'B' schedule properties were damaged very often. The Plaintiffs have put up a stony construction as a compound wall from the Western end of R.S.No. 62/1 of Chinnapuliyur Village on its North. There is a live fence along the rest of R.S.No.63/1 on its Northern Border and also along the Northern Border of R.S.Nos.63/2 and 63/4. The Defendants and other local Villagers have forcibly and unlawfully destroyed the live fence in between the 'A' and 'B' schedule properties on 16-12-2002 and levelled the 'B' schedule properties and the graveyard on the East with the help of a powerful earth mover. The Plaintiffs objected to the unlawful acts of the Defendants and prevented them from continuing their illegal acts. The Plaintiffs have also filed a plaint plan. Due to the illegal acts of the Defendants, a cloud has been cast on the title of the Plaintiffs. Hence, the Plaintiffs have filed the suit for declaration of the title to the 'A' schedule properties and for permanent injunction restraining the Defendants from interfering with the Plaintiff's peaceful possession and enjoyment of 'A' and 'B' schedule properties. b) The Defendants have filed the written statement claiming right of burying and cremating of the dead bodies adjacent to the property in R.S.No. 961. b) The Defendants have filed the written statement claiming right of burying and cremating of the dead bodies adjacent to the property in R.S.No. 961. According to the Defendants, the Plaintiffs and their predecessors in title were never in possession and enjoyment of R.S.No. 961. The general public of Chinnapuliyur Village have been using the suit properties in R.S.No. 961 of Jambai Village to wash their clothes. The same has been used for washing the clothes for more than ten decades. The suit property in R.S.No. 962/1 of Jambai Village was annexed with Bhavani river. The properties in R.S.No. 961 have been used as burial and cremation ground, over which the Plaintiffs have no right. The Plaintiffs and their predecessors in title were never in possession and enjoyment of the suit properties in R.S.No. 961. c) I.A.No. 1278 of 2002:- On the basis of the Application filed by the Plaintiffs, in this Application an Advocate Commissioner was appointed and he has filed his report. The Commissioner has noted the existence of the burial ground and the cemetery used by the Christians and has also noted the ashes and bones. The Commissioner has also noted the other physical features, including the obliteration of the live fence. d) I.A.No. 92 of 2003:- The Defendants 2 to 6 have filed this Application for appointment of an Advocate Commissioner to measure the suit properties and to fix the boundaries of the suit properties with the assistance of the Taluk Surveyor. According to the Defendants 2 to 6 the general public of Chinnapuliyur Hamlet have been using R.S.No. 961 and other suit properties as cremation ground for more than ten decades. The earlier Commissioner's Report filed in I.A.No. 1278 of 2002 reveals the existence of burial and cremation ground in the suit properties. Immediately on the North of the suit properties, there is a Bhavani river in R.S.No. 962/1 of Jambai Village. Under such circumstances, this Application has been filed to appoint an Advocate Commissioner and for measuring the suit properties with the assistance of the Taluk Surveyor and to file the report and plan thereon. e) The Respondents/Plaintiffs have resisted the Application contending that there is no burial or cremation ground in the suit properties. The place where the Commissioner had earlier found bones and ashes were outside the suit properties. The suit properties were never enjoyed as the burial and cremation ground. e) The Respondents/Plaintiffs have resisted the Application contending that there is no burial or cremation ground in the suit properties. The place where the Commissioner had earlier found bones and ashes were outside the suit properties. The suit properties were never enjoyed as the burial and cremation ground. In fact, the burial and cremation ground are located outside the suit properties and in the dry parts of Bhavani river. The Defendants 2 to 6 and the third respondent have collusively joined together in attempting to encroach the suit properties by destroying the live fence. f) Upon consideration of the contention of both the parties, the learned Principal District Munsif found that the burden lies upon the Defendants to prove that there is a burial ground - adjacent to the suit properties. It was further held that, whether the suit properties are used as the burial ground and in whose possession it is, is a matter of evidence. The learned District Munsif was of the view that the Commissioner cannot be appointed to gather evidence. It was held that when there is no dispute regarding the boundary, no useful purpose would be served by appointing the Advocate Commissioner, directing him to measure the suit properties. 3. Aggrieved over the dismissal of the Application, the Revision Petitioners/Defendants 2 to 6 have preferred this Revision. The learned counsel for the Revision Petitioners has contended that the earlier Commissioner has only noted the physical features, which may not be sufficient to answer the contentious points. The learned counsel has further submitted that measuring the suit properties with survey plan would be of great assistance in resolving the dispute. Drawing the attention of the Court to the Commissioner's Report and Plan, the learned counsel for the Revision Petitioners has submitted that in the absence of dividing line between 'A' and 'B' schedule properties and for effective determination of the boundary dispute raised by the parties, the Commissioner has to be appointed to measure the suit properties with the help of the surveyor. In support of his contention, the learned counsel for the Revision Petitioners has relied upon the decision reported in (2000) 3 M.L.J. 84 (S.C.) (SHREEPAT Vs. RAJENDRA PRASAD AND OTHERS). 4. In support of his contention, the learned counsel for the Revision Petitioners has relied upon the decision reported in (2000) 3 M.L.J. 84 (S.C.) (SHREEPAT Vs. RAJENDRA PRASAD AND OTHERS). 4. Countering the arguments, the learned counsel for the Respondents/Plaintiffs has submitted that there is no dispute regarding the boundary and hence, there is no necessity to appoint the Advocate Commissioner for the second time. The learned counsel for the Respondents has further urged that the dispute between the parties is only a matter of evidence and the trial Court has rightly declined to appoint the Advocate Commissioner for the second time and that the impugned order suffers from no infirmity. Submitting that mere lapse in the Advocate Commissioner's Report does not necessitate the appointment of further Commissioner, the learned counsel for the Respondents has relied upon the decision reported in 1995 (II) CTC 553 (CHOKKALINGAPURAM THEVANGAR VARDHAGA SANGAM Vs. CHOKKANATHASWAMI TEMPLE). 5. Whether the impugned order declining to appoint an Advocate Commissioner to measure the suit properties with the help of the surveyor suffers from any material irregularity warranting interference, is the main point that arises for consideration in this Revision. 6. The suit properties comprised of two items – 'A' and 'B' schedule properties :- 'A' Schedule Properties Chinnapuliyur Village R.S.No. 63/2 .. 0.04.0.H. R.S.No. 63/1A .. 0.82.0.H. 'B' Schedule Properties Jambai Village Old S.No. 982/B .. Corresponding to New S.No.961. The Plaintiffs have produced the plaint plan. According to the Plaintiffs, Bhavani river runs on the North of the suit properties and the graveyard is on the East of the suit properties. Earlier, the Advocate Commissioner was appointed. In the elaborate Report, the learned Advocate Commissioner has noted traces of bodies being cremated in the location of the suit properties. In his report, in more than one place, the learned Advocate Commissioner has referred to the traces of evidence for cremation and burial of the body as is clear from the following:- "...mg;gFjpfis ghh;f;ifapy; vYk;g[fs; vhpf;fg;gl;l epiyapy; rhk;gy;fs; fhzg;gl;ld... mg;gFjpapid cw;W ghh;f;ifapy; rly';fs; g[ijf;fg;gl;lJ nghy; kz; mikg;g[ fhzg;gl;;;lJ. mg;gFjp KGtJk; kz; gwpf;fg;gl;l epiyapy; ,Ue;jjhy; vYk;g[f;F. Kl;fs; fhzg;gl;ld//// mHpf;fg;gl;l fiuapypUe;J Rkhh; 10 mo Jpuj;jpy; ,we;J nghd eghpd; rlyk; g[ijf;fg;gl;l g[ij FHp (o1) xd;W cs;sJ. mg;gFjpapid cw;W ghh;f;ifapy; rly';fs; g[ijf;fg;gl;lJ nghy; kz; mikg;g[ fhzg;gl;;;lJ. mg;gFjp KGtJk; kz; gwpf;fg;gl;l epiyapy; ,Ue;jjhy; vYk;g[f;F. Kl;fs; fhzg;gl;ld//// mHpf;fg;gl;l fiuapypUe;J Rkhh; 10 mo Jpuj;jpy; ,we;J nghd eghpd; rlyk; g[ijf;fg;gl;l g[ij FHp (o1) xd;W cs;sJ. mg;g[ijf;FHpf;F rw;W bjhiytpy; mHpf;fg;gl;l fiuapy; ,Ue;J Rkhh; 15 mo Jpuj;jpy; ,d;bdhU g[ijFHp (o2) fhzg;gLfpwJ/ nkw;go ,U g[ij FH[pfSk; bjw;F tlyhf mike;jpUe;jd/// mg;gFjpf;F tlf;nf Rkhh; 8 mo Jpuj;jpy; fpwp!;od; xUtih g[ijj;jw;F mwpFwpahf rpYit rpd;dk; bghUj;jg;gl;l g[ij FHp xd;W fhzg;gLfpwJ. mg;g[ij;FHp kpft[k; gHikahdjhf fhzg;gLfpwJ/ mr;rpYit milahs rpd;dkhdJ kuj;jpdhy; bra;ag;gl;oUe;jJ///mjd; bjd;gFjpapYk; ,we;J nghd egh;fspd; rly';fs; g[[ijf;fg;gl;L ,Ue;jij fhzKoe;jJ/ mitfis o3. o4 vd tiuglj;jpy; Fwpj;Js;nsd;/////" The existence of burial ground and the place being used as cremation ground is made clear by the above observations of the Advocate Commissioner. 7. The Advocate Commissioner has also noted that the live fence had been destroyed. The Commissioner, within 10 feet in the 'B' schedule properties has noted burial of dead bodies shown as D.1 and D.2 in his report. The Commissioner has also noted cemetery, which is being used as the place of burial ground for Christians. The Plaintiffs denying the existence of the burial ground in the 'B' schedule properties, in their counter statement the Plaintiffs have alleged thus:- "...There is no burial ground or cremation ground in the suit properties and nobody even used the suit properties as burial ground or cremation ground. The Commissioner's Report does not reveal any cremation ground or burial ground in the suit properties. The places where the Commissioner found bones and ashes were outside the suit properties..." The Plaintiffs have further pleaded that the Defendants have destroyed a part of the suit properties by removing the fence and damaging the bund in the suit properties and they have thrown some bones and ashes in the 'B' schedule properties, just prior to the Commissioner's visit, merely to make representation to the Commissioner that there was a burial ground and cremation ground. The Plaintiffs have further alleged that the Commissioner has found the evidence of burial of dead bodies only near the suit properties and not inside the suit properties. Thus, the Plaintiffs contending that the burial ground and cremation ground are not inside the suit properties, but next adjacent to the suit properties, have raised the dispute regarding the boundary. The Plaintiffs have further alleged that the Commissioner has found the evidence of burial of dead bodies only near the suit properties and not inside the suit properties. Thus, the Plaintiffs contending that the burial ground and cremation ground are not inside the suit properties, but next adjacent to the suit properties, have raised the dispute regarding the boundary. When dispute is raised regarding the boundary and location of the suit properties and the exact location of the burial ground, the measurement of the suit properties with the help of surveyor is very much essential. 8. The Commissioner in his report has also noted that there is no demarcating line between 'A' and 'B' schedule properties. As noted earlier, the Plaintiffs have denied the existence of the burial ground and the cremation ground on the Northern Side. The Defendants are said to be the Office Holders of the local Panchayat. They are said to be interested in maintaining the Northern Side property as the burial ground and cremation ground. It is relevant to note that the Plaintiffs have sought for the relief of declaration and permanent injunction. In cases, where the Court is to grant the relief of declaration, the identification and the exact location of the suit properties are very much essential. Admittedly, the earlier Report does not contain the measurement. It is not a mere lapse, but the report is lacking and it does not address the issues/contentious points between the parties. The decision relied upon by the learned counsel for the Respondents in 1995 (II) CTC 553 (CHOKKALINGAPURAM THEVANGAR VARDHAGA SANGAM Vs. CHOKKANATHASWAMI TEMPLE), has no application to the case in hand. In the said case, it was observed that mere lapse in Advocate Commissioner's report does not necessitate automatic appointment of further Commissioner. In the case in hand, the absence of measurement of the suit properties is not a mere lapse; but, there is a necessity to measure the suit properties with the help of the surveyor and hence, the appointment of Advocate Commissioner for the second time is very much essential. 9. The earlier report of the Advocate Commissioner, which does not refer to the measurement can be elaborated only by reappointing the same Advocate Commissioner to measure the suit properties with the help of the surveyor. 9. The earlier report of the Advocate Commissioner, which does not refer to the measurement can be elaborated only by reappointing the same Advocate Commissioner to measure the suit properties with the help of the surveyor. Measuring the suit properties with the help of the surveyor and the plan drawn to the scale would be of great assistance to the Court. The measurement of the suit properties and the survey plan are a kind of evidence, which could be obtained only in the spot by measuring the suit properties. Whenever, there is a dispute regarding the demarcating line and identification of the property, appointment of Advocate Commissioner to measure the properties with the help of surveyor is very much necessitated. In this case, the Plaintiffs have not only denied the location of burial ground and the cremation ground, but have also denied the location in R.S.No. 961. In the decision reported in (2000) 3 M.L.J. 84 (S.C.) (SHREEPAT Vs. RAJENDRA PRASAD AND OTHERS) the Supreme Court has observed that when ever there is a dispute regarding the boundaries contending that the disputed area is in another survey number, it was held that the Court should issue a Survey Commission to locate the plot in dispute and find out whether it formed part of one survey number or the other. 10. The above Supreme Court decision squarely applies to the case in hand. The finding of the trial Court "...jhth brhj;Jf;fis msg;gjhnyh mjDila vy;iyfis eph;zak; bra;tjhnyh vt;tpj gpunah$dKk; ,y;iy ..." does not reflect the real state of affairs. In the facts and circumstances of the case, the lower Court was not right in declining to appoint the Advocate Commissioner to measure the suit properties with the help of the surveyor. The finding of the lower Court that no useful purpose would be served by appointing Survey Commission is wrong and cannot be sustained. For the foregoing reasons, the same Advocate Commissioner, who has earlier visited the suit properties and file the Report is to be reappointed to measure the suit properties with the help of the surveyor and to file his report. 11. The impugned order of the Principal District Munsif, Bhavani, dated 13-03-2003 made in I.A.No. 92 of 2003 in O.S.No.356 of 2002, is set aside and this Revision Petition is allowed. Consequently, the connected C.M.P.No. 6295 of 2003 is closed. 11. The impugned order of the Principal District Munsif, Bhavani, dated 13-03-2003 made in I.A.No. 92 of 2003 in O.S.No.356 of 2002, is set aside and this Revision Petition is allowed. Consequently, the connected C.M.P.No. 6295 of 2003 is closed. The same Advocate Commissioner, who has earlier visited the suit properties is reappointed to measure the suit properties with the help of the surveyor and to file his further report along with the survey plan drawn to the scale. The learned Principal District Munsif is directed to issue warrant to the Advocate Commissioner pursuant to the prayer sought for in the petition. In the circumstances of the case, there is no order as to costs.