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2005 DIGILAW 1283 (MAD)

Subramaniam v. Saminathan & Others

2005-08-05

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition is against the fair and final order passed in I.A.No. 682 of 1998 in O.S.No. 248 of 1998, dated 21-07-1999, passed by the learned District Munsif, Nannilam.) This Revision is directed against the order of the District Munsif, Nannilam, dated 21-07-1999 in I.A.No. 682 of 1998 in O.S.No. 248 of 1998, dismissing the Application filed under Or.26 R.9 C.P.C., declining to appoint an Advocate Commissioner. The Plaintiff, is the Revision Petitioner. 2. The facts necessitated for disposal of this Revision Petition could briefly be stated thus:- a) O.S.No. 248 of 1998:- The Suit property relates to Survey No. 11/14 of Melaveli Village, Kudavasal Taluk. According to the Plaintiff, he is entitled to the Suit property by virtue of patta granted by the Government. In the Suit Survey Number, the Defendants are alleged to have encroached into a portion of the property measuring East-West 63 feet; North South 16-17 feet. The Plaintiff has issued the Legal Notices on 04-09-1998 and 10-10-1998, calling upon the Defendants to hand over the vacant possession. The Defendants 2 and 6 have received the Notices. The other Defendants have returned the covers, refusing to receive the same. The Defendants have encroached about 36 Kuzhi. Hence, the Plaintiff has filed the Suit for recovery of possession. b) Denying the Title of the Plaintiff in the Suit, the Defendants have filed the Written Statement contending that the Defendants 1 to 4 and 6 and their fathers were working in the Pannai of one Yahaya Rowther. In and about 1965, the said Yahaya Rowther, permitted the Defendants 1 to 4 and 6 and their fathers to occupy the property, now in possession of the Defendants for the purpose of putting up superstructure and to live thereon. Accordingly, the Defendants 1 to 4 and 6 and their fathers, have constructed the thatched superstructure and became Kudiyiruppudar of their respective possession. Under the Provision of Section 23 of Act 40/1971, the Suit for recovery of possession against Kudiyiruppudar, is barred and hence, the Suit is not maintainable. c) Even at the time of filing the Suit, the Plaintiff has filed I.A.No. 682 of 1998 seeking for appointment of an Advocate Commissioner. In the supporting affidavit, it is alleged that the Defendants have encroached East-West 63 feet and North-South 16-17 feet in or about November 1995. The Suit property was not measured at any point of time. c) Even at the time of filing the Suit, the Plaintiff has filed I.A.No. 682 of 1998 seeking for appointment of an Advocate Commissioner. In the supporting affidavit, it is alleged that the Defendants have encroached East-West 63 feet and North-South 16-17 feet in or about November 1995. The Suit property was not measured at any point of time. Hence, the Plaintiff has sought for appointment of an Advocate Commissioner to note down the physical features and also to measure the Suit property with the help of the surveyor and to file the report with the plan drawn to scale. d) The Defendants have resisted the Application contending that the purpose of the Application is only to gather the evidence through the Survey Commissioner. The Petitioner is not entitled to seek for the relief of appointment of an Advocate Commissioner. e) The learned District Munsif found that, if only by adducing evidence the Plaintiff is to prove the encroachment, the Commissioner cannot be appointed to collect the evidence and to gather the particulars in support of the Plaintiff. Further, it was held that the Commissioner cannot be appointed to note down the factum of possession of the Defendants. 3. Aggrieved over the dismissal of the Application for appointment of the Advocate Commissioner, the Revision Petitioner/Plaintiff has filed this Revision. The learned counsel for the Revision Petitioner has contended that for effective adjudication, it is necessary to note down the physical features and also to measure the Suit property. It is submitted that measuring the Suit property by the Survey Commission would not amount to gathering of evidence. It is also contended that noting down the encroachment of the Defendants and the extent thereon would not amount to proving the factum of possession as held by the trial Court. 4. The Respondents have been served through Private Notice, but, they have not entered appearance. The points urged by the Respondents/Defendants in the lower Court had been taken into consideration for disposal of this Revision Petition. 5. Upon consideration of the contentions of the Revision Petitioner/Plaintiff, the impugned order and other materials on record, the following points arise for consideration in this Revision Petition:- i.Whether the seeking of the Advocate Commissioner to note down the measurements and the alleged encroachment by the Defendants amounts to collecting of evidence and proving the factum of possession ? 5. Upon consideration of the contentions of the Revision Petitioner/Plaintiff, the impugned order and other materials on record, the following points arise for consideration in this Revision Petition:- i.Whether the seeking of the Advocate Commissioner to note down the measurements and the alleged encroachment by the Defendants amounts to collecting of evidence and proving the factum of possession ? and ii.Whether the impugned oder declining appointment of the Commissioner is sustainable ? 6. In the Plaint Schedule, the Suit property is described as :- S.No. 11/4 of ... Melaveli Village, Kudavasal Taluk East-West ... 63 feet North-South ... 16-17 feet The Defendants have encroached in the Suit property ... to an extent of about 36 kuzhi 7. The case of the Plaintiff is that patta was given to the Plaintiff, out of which, the Defendants have encroached into the above extent of Suit property. The Application for appointment of the Advocate Commissioner has been filed to note down the physical features and to measure the Suit property and to note down the exact area of encroachment. 8. The Defendants have raised the plea that they are in permissive possession of the Suit property, pursuant to the permission given by Yahaya Rowther, who was in Management of the entire lands belonging to him and his Family Members. Further, defence is that the Defendants 1 to 4 and 6 and their fathers, have constructed the thatched superstructure and became the Kudiyiruppudar of their respective possession. The Defendants have raised the plea of non-maintainability of the Suit in view of the Provision of Section 23 of Act 40/1971, under which, the Suit for recovery of possession against Kudiyiruppudar is barred. 9. The contentious defence urged by the Defendants denying the right of the Plaintiff is to be determined only at the time of trial. But, the fact remains that the Defendants have put up superstructure in the Suit property. The Plaintiff has produced the Plaint Documents along with the Patta for the Suit property granted in his favour. The questions as to, what is the total extent of encroachment and the age of the superstructure and such other relevant aspects could be better broughtout only by inspecting the Suit location and the Commissioner filing the report with the plan drawn to scale. The disputed area is said to be the extent of encroachment. The questions as to, what is the total extent of encroachment and the age of the superstructure and such other relevant aspects could be better broughtout only by inspecting the Suit location and the Commissioner filing the report with the plan drawn to scale. The disputed area is said to be the extent of encroachment. In view of the dispute between the parties, the issuance of the Commission Warrant, to find out the physical features, area of encroachment and other aspects would not amount to collection of evidence. 10. Equally, the appointment of Commissioner does not amount to collecting the evidence regarding the factum of possession. Admittedly, the Suit itself is for delivery of vacant possession. The Plaintiff is not sure about the exact area of encroachment by the Defendants. While so, it is open to the Plaintiff to seek appointment of an Advocate Commissioner to note down the area in possession of the Defendants. The Suit has been filed for recovery of possession. If the Plaintiff is not able to produce the best attainable evidence, in appropriate cases, the Court may assist the Party to appoint a Commissioner. However, the report of the Advocate Commissioner could be countermanded by the Defendants by producing appropriate evidence showing their permissive possession. But, it would not be proper to decline the appointment of the Advocate Commissioner on the ground that the Plaintiff is seeking to bring out the factum of possession. 11. By declining to appoint the Advocate Commissioner, the lower Court has unjustly shut an opportunity of taking out the Advocate Commissioner. The District Munsif was not right in declining the appointment of the Advocate Commissioner. The impugned order suffers from material irregularity and is to be set aside. 12. For the foregoing reasons, the order of the District Munsif, Nannilam, dated 21-07-1999 in I.A.No. 682 of 1998 in O.S.No. 248 of 1998, is set aside and this Revision Petition is allowed. Consequently, the connected C.M.P.No. 19338 of 1999 is also dismissed. In the circumstances of the case, there is no order as to costs. The learned District Munsif, Nannilam, is directed to appoint an Advocate Commissioner and issue a Commission Warrant, to note down the physical features, measuring the Suit property with the help of the surveyor and other aspects mentioned in the Petition.