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2005 DIGILAW 1228 (MAD)

Palanisamy & Another v. P. Ayyanar & Others

2005-08-01

R.BANUMATHI

body2005
Judgment :- Invoking Art.227 of the Constitution of India, this revision is directed against the order passed in I.A.No.857 /2003 in O.S.No.61/2002, dated 04.08.2003, by the Principal District Munsif Court, Salem, allowing the application filed under Or.26, R.9 CPC appointing the Advocate Commissioner. Defendants are the Revision Petitioners. 2. O.S.No.61/2002:- Plaintiffs 1 to 3 are the sons of Perumal Gounder. Defendants 1 and 2 are the husband and wife and are neighbours to the Plaintiffs 1 to 3. Case of the Plaintiffs is that their father had purchased the suit property for Rs.3,000/- from the predecessor in title on 31.10.1973. After the purchase, the Plaintiffs' father Perumal Gounder was in enjoyment of the same. He died intestate and after his death, the Plaintiffs were in enjoyment of the suit property. Plaintiffs 1 to 3 are the absolute owners of the suit properties. Plaintiffs 1 to 3 have put up three houses in the suit properties. The first Plaintiff had constructed a terraced house and the Plaintiffs 2 and 3 have put up tiled house in the suit properties. As per the family arrangement, the suit property had been shared among the three Plaintiffs. The Plaintiffs have left 3½ feet vacant space along their northern wall for the maintenance of their northern wall. The Defendants while proceeding with the construction has attempted to encroach upon the land of the Plaintiffs on the northern side. The Defendants have been attempting to grab the property on the northern side to cause wrongful loss to the Plaintiffs. Hence the Plaintiffs have filed the suit for permanent injunction restraining the Defendants 1 and 2 from in any way trespassing into the northern side property and causing disturbance to the Plaintiffs' possession and enjoyment. 3. Denying the averments in the plaint, the Defendants have filed the Written Statement denying the family arrangement between the Plaintiffs. The Defendants had not encroached upon the property, much less of the Plaintiffs'. Since the Plaintiffs had encroached and obstructed the rights of the Defendants, the first Defendant has filed O.S.No.196/2002 on the file of the District Munsif Court, Salem. The Plaintiffs have no property further north of their northern wall. They have already sufficiently encroached upon the Defendants' property and the property of the public. The Plaintiffs have no right either on the eastern portion or on the northern side. The Plaintiffs have no property further north of their northern wall. They have already sufficiently encroached upon the Defendants' property and the property of the public. The Plaintiffs have no right either on the eastern portion or on the northern side. The Plaintiffs never had any access to the northern side of their wall. On the eastern side, the Plaintiffs have right to access and the same is left for public use and occupation. After the suit was filed, under the guise of exparte order of injunction, that too for the different property, the Plaintiffs are attempting to encroach upon the Defendants' property. 4. The Plaintiff was examined as PW-1. With the evidence of PW-2, the Plaintiffs' evidence was closed. At that stage, the Plaintiffs have filed I.A.No.857/2003 for appointment of Advocate Commissioner. Referring to his cross-examination, the first Plaintiff has stated that on the eastern side of the property, there is Mariamman Koil Street available and the Plaintiff has alleged that on the eastern side of his house only, the Mariamman Temple is situated. It is further alleged that the Mariamman Koil Land is only on the western side of their house, which is running in north-south direction. The Mariamman Koil street commences from main road and running on the east west direction to the southern side of the Mariamman Temple. To avoid much of oral evidence and to know the existence of Mariamman Temple on the eastern side and the Mariamman Koil Land on the western side, this application was filed by the Plaintiffs for appointment of Advocate Commissioner. 5. The application was resisted by the Defendants, contending that the averments in the affidavit and the plaint averments are contradictory to each other. The Defendants have opposed the application on the ground that neither the Mariamman Temple nor the land are the suit properties and the Commissioner cannot be sought to be appointed to note down the temple and Mariamman Koil Land, which is not the subject matter of the suit. The Defendants have resisted the application and elaborately filed counter statement that the application has been filed belatedly after the cross examination of the Plaintiffs and the appointment of Advocate Commissioner would cause serious prejudice to the Respondents/Defendants. 6. The Defendants have resisted the application and elaborately filed counter statement that the application has been filed belatedly after the cross examination of the Plaintiffs and the appointment of Advocate Commissioner would cause serious prejudice to the Respondents/Defendants. 6. The learned Principal District Munsif allowed the application appointing Advocate Commissioner on the ground that the physical features and the report of the Advocate Commissioner would considerably reduce the oral evidence. There is no discrepancy between the petition mentioned property and the suit property. The Advocate Commissioner was appointed to note down the physical features of the suit properties as well as the existence of Mariamman Temple and also Mariamman Koil Land. 7. Aggrieved over the appointment of Advocate Commissioner, this revision is preferred by the Defendants. The learned counsel for the revision petitioners has contended that when the suit has been filed for bare permanent injunction, it is the duty of the Plaintiffs to prove their possession and their possession cannot be proved by getting an Advocate Commissioner appointed and inviting report from him. It is further contended that the application has been belatedly filed after the examination of the Plaintiffs' witnesses. Assailing the impugned order, the learned counsel for the revision petitioners has submitted that the issuance of the warrant to the Advocate Commissioner to note down the existence of Mariamman Temple on the eastern side and the Mariamman Koil Land on the western side is not necessary and is irrelevant for the subject matter of the suit. 8. The Respondents/Plaintiffs were served but have not entered appearance. Their contention put forth in the lower court had been taken into consideration for disposal of this revision. 9. The only point that arises for consideration is whether the impugned order appointing Advocate Commissioner suffers from jurisdictional error or whether there is any improper exercise of power, warranting interference under Art.227 of the Constitution of India? 10. The suit had been filed for permanent injunction relating to the suit property. In the Plaint, suit schedule property is described as: - "bguk;gY}h; khhpak;kd; nfhtpy; bjUt[ nky;g[uk; !;nuzpapy; //////// fPH nkyo 43/1-2 mo/ bjd;tlyo Rkhh; 20'3". ,e;j mst[s;s Rkhh; 881 rJuo kidepyk; g{uht[k;/ ,jpy; fl;oapUf;Fk; nlhh; bek;gh; 140 jhh;R tPL xd;Wk;/ nlhh; be;1/ 1-V. 142. 142V tpy;iy tPLfs; ,uz;Lk;/" The very description of the suit property relates to the Mariamman Temple and the street thereon. ,e;j mst[s;s Rkhh; 881 rJuo kidepyk; g{uht[k;/ ,jpy; fl;oapUf;Fk; nlhh; bek;gh; 140 jhh;R tPL xd;Wk;/ nlhh; be;1/ 1-V. 142. 142V tpy;iy tPLfs; ,uz;Lk;/" The very description of the suit property relates to the Mariamman Temple and the street thereon. In the description of the property, it is stated that the suit property is on the western side of Mariamman Koil Street. But in the supporting affidavit, the Plaintiffs have averred that Mariamman Temple is situated on the Eastern side and that Mariamman Koil Street is on the western side of their house property which runs on the north-south direction. Though there appears to be some contradiction between the averments in the affidavit and the description of the property in the Plaint Schedule, that cannot be the reason for disallowing the application for appointment of Advocate Commissioner. After all, Advocate Commissioner is sought to be appointed only to make a clear report on the location of the suit property and other physical features and the boundaries thereon. Any discrepancy could easily be resolved by the Report of the Advocate Commissioner. The Defendants are not justified in resisting the appointment of Advocate Commissioner on the ground of variation in the description of the property in the plaint schedule and in the averments of the affidavit. 11. The first Plaintiff was examined as PW-1 and was cross examined. Oral evidence of the Plaintiffs' side was completed on 20.06.2003. Thereafter, referring to the cross examination of the Plaintiff, the Commissioner had been sought to be appointed: "... to inspect the suit property and note down its physical features and vacant land Mariamman temple situated on the Eastern side of the suit property and also to note down the Mariamman Koil Land which is situated on the Western side of the suit property and also the location of the house property belonging to the Respondents on the Northern side of the suit property and also direct the Commissioner to file a rough plan along with report ..." 12. This is objected to by the Defendants on the ground that the Mariamman Temple situated on the eastern side and the Mariamman Koil Land situated on the Western side are not the suit properties and are in no way connected to the issues in dispute. This is objected to by the Defendants on the ground that the Mariamman Temple situated on the eastern side and the Mariamman Koil Land situated on the Western side are not the suit properties and are in no way connected to the issues in dispute. The main contention urged by the Defendants is that only the house property of the Plaintiffs is the suit property and that the issuance of Commissioner's Warrant to note the other aspects is unwarranted. This contention has no force, when considered in the light of the defence put-forth in the Written Statement. In their Written Statement, the Defendants have denied any encroachment upon the property of the Plaintiffs. The Defendants have also denied the right of the Plaintiffs in the Survey Number 85. The Defendants have alleged that the Plaintiffs have created false documents by mentioning T.S.No.85 in their documents and they have proposed to construct their building. The Defendants have further alleged that only the Plaintiffs have encroached into their portion and the first Defendant had also filed another suit in O.S.No.196/2002. The Defendants have also raised the plea that the Plaintiffs have right to access only on the eastern side, which is left for public use. In view of the denial of the Plaintiffs' right over the northern side property, on their northern wall and other defence put-forth by the Defendants for effectively resolving the dispute between the parties, Advocate Commissioner has been rightly appointed. 13. All the contentious points between the parties could easily be resolved by the appointment of the Advocate Commissioner and his Report. The dispute regarding the existence of pathway - Mariamman Temple on the eastern side and the Mariamman Koil Land on the right of the Plaintiffs' in the suit property and further north of their northern side wall relating to other contentious issues, evidence could be obtained only by appointment of Advocate Commissioner. Since the dispute had been raised regarding the Survey Number, it would be appropriate to direct the Advocate Commissioner to seek the help of the Surveyor in measuring the property of the Plaintiff and also of the Defendants and to file the report with the plan drawn to scale. No serious objection could be raised by the Defendants. 14. Since the dispute had been raised regarding the Survey Number, it would be appropriate to direct the Advocate Commissioner to seek the help of the Surveyor in measuring the property of the Plaintiff and also of the Defendants and to file the report with the plan drawn to scale. No serious objection could be raised by the Defendants. 14. Appointment of Advocate Commissioner is assailed on the ground that the suit has been filed for permanent injunction and that now the Advocate Commissioner is sought to be appointed mainly for noting down the possession, which cannot be allowed. The Commissioner has been appointed only for noting down the physical features, existence of Mariamman Temple on the eastern side, Mariamman Koil Land on the western side and other aspects. While noting those features, incidentally possession may also be brought out. It cannot be said that the appointment of Advocate Commissioner has been sought for to note down the factum of possession. 15. Though the appointment of Advocate Commissioner has been sought for after the Plaintiffs' evidence was completed, the application cannot be objected to on the ground that it has been belatedly filed. The suit is of the year 2002, Written Statement was filed only in September 2002. Application for appointment of Advocate Commissioner was filed in June 2003 when the trial was in progress. 16. The report of the Advocate Commissioner would reduce the oral evidence, apart from throwing light upon the contentious points urged by the parties. The impugned order appointing Advocate Commissioner does not suffer from material irregularity to invoke any exercise of the Supervisory power of the Court under Art.227 of the Constitution of India. This revision has no merits and is bound to fail. 17. When the Court was about to pass orders, the Court was informed that the suit O.S.No.61 of 2002 itself has been disposed of after full trial. The same is recorded. Since orders have already been drafted, disposal of the suit in O.S.No.61/2002 is recorded. 18. Therefore, the order passed in I.A.No.857/2003 in O.S.No.61/2002, dated 04.08.2003, on the file of the Principal District Munsif Court, Salem, is confirmed and this revision petition is dismissed. Consequently, CMP No.18303/2003 is also dismissed. In the circumstances of the case, there is no order as to costs.