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2005 DIGILAW 1406 (MAD)

Govindaraju v. K. Muthukumaraswamy

2005-08-23

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 11.06.2003 passed by the learned Principal District Munsif, Valangaiman at Kumbakonam in I.A.No.155 of 2003 in O.S.No.269 of 2001,as stated therein.) This Civil Revision Petition is directed against the order dated 11.06.2003 made in I.A.No.155 of 2003 in O.S.No.269 of 2001 by the learned Principal District Munsif, Valangaiman at Kumbakonam, dismissing the Petition filed under Order XVI Rule 9 and Section 151 C.P.C, declining to appoint Advocate Commissioner. The Plaintiff is the Revision Petitioner. 2. The Plaintiff and the Defendant are Brothers. The Brothers are pitted against each other on enjoyment of common lane. Case of the Plaintiff is that he is residing in New Door No.58/3-B. The Defendant is residing in New Door No.2/72. In between the two houses, there is a common lane covering 90 feet in length and 17 feet in breadth. The Plaintiff is a Lessee of R.S.No.58/3 and R.S.No.106/11 – total extent of 81 cents under Thiruvavaduthurai Atheenam. R.S.No.58/3 is the Suit Property in O.S.No.269 of 2001. The Plaintiff and the Defendant have been using the common lane for a number of years. The common lane is in existence for more than 70 years. The Plaintiff is using the common lane for taking Lorries, Cart, Truck and Tractors to take the coconuts, since the Plaintiff's Wife is doing coconut business. While so, the Defendant is illegally trying to construct over common lane and blocking the portion of the common lane. Hence, the Plaintiff has filed the Suit for Mandatory Injunction for removal of the offending construction and the restoration of the portion over which illegal construction has been made and also for Permanent Injunction restraining the Defendant from in any manner making any further construction. 3. The Defendant has filed the Written Statement denying the existence of the common lane. According to the Defendant, the Plaintiff had cunningly created a Partition Deed on 10.04.1978 and the Plaintiff had taken major portion of the valuable properties towards his share. In the said 1978 Partition, the Suit Property was not included. The three houses thereon is also not included. All the three houses have been left as a joint family properties. Hence, the Suit filed by the Plaintiff against the joint owner is not maintainable in law. All the houses in S.No.116 and 58/3 are the undivided properties. In the said 1978 Partition, the Suit Property was not included. The three houses thereon is also not included. All the three houses have been left as a joint family properties. Hence, the Suit filed by the Plaintiff against the joint owner is not maintainable in law. All the houses in S.No.116 and 58/3 are the undivided properties. There is no lane in between the houses of the Plaintiff and the Defendant. 4. Written Statement was filed on 17.06.2002. Trial commenced. Parties have adduced evidence. When the Suit was in the Part-heard stage, the Plaintiff has filed I.A.No.155 of 2003 seeking Appointment of Advocate Commissioner. According to the Plaintiff, since the Defendant is denying the existence of any lane in between the Plaintiff and the Defendant houses and since the Defendant has encroached on a portion of the land and put up construction, Commissioner is to be appointed to note down the existence of the lane and the disputed construction. To avoid much oral evidence, the Advocate Commissioner was sought for. 5. Raising objection for Appointment of Advocate Commissioner, the Defendant has filed Counter Statement stating that the Commissioner cannot take evidence regarding the existence of the lane. When there is no lane, there is no necessity to appoint Advocate Commissioner to note down the existence of the lane and the Application has been filed belatedly, when the case is pending part heard. 6. Learned District Munsif has dismissed the Application finding that the Application has been filed belatedly during the Trial stage. Pointing out that no document has been produced showing the exclusive right of the Plaintiff over the properties and the existence of the lane, the lower Court declined to appoint the Advocate Commissioner. Referring to the decision reported in 2000 (1) L.W. 699 , the lower Court observed that the Commissioner cannot be appointed to note down the factum of possession of the lane and the properties. 7. Aggrieved over the order of refusal to appoint Advocate Commissioner, the Plaintiff has preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner would contend that the existence of the lane could be brought out only by appointing the Advocate Commissioner and noting the physical features thereon. 7. Aggrieved over the order of refusal to appoint Advocate Commissioner, the Plaintiff has preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner would contend that the existence of the lane could be brought out only by appointing the Advocate Commissioner and noting the physical features thereon. Submitting that the appointment of Advocate Commissioner would cause no prejudice to the Defendant, learned counsel for the Revision Petitioner / Plaintiff has contended that by the appointment of Commissioner and finding out the exact measurement of the lane and the offending construction, much oral evidence would be reduced. 8. Despite opportunities, there was no representation onbehalf of the Respondent. The contentious points urged by the Respondent / Defendant in the lower Court have been taken into consideration for disposal of this Civil Revision Petition. 9. In the facts and circumstances of the case whether the lower Court was right in declining to appoint the Advocate Commissioner is the short point arising for consideration in this Civil Revision Petition. 10. The Suit lane is said to be of 17 feet breadth and 90 feet length situated in R.S.No.58/3, Narasingampettai Village. Case of the Plaintiff is that the lane is in existence in between the houses of the Plaintiff and the Defendant and both of them and their ancestors have in common enjoyment of the lane for more than 70 years. It is alleged that the Plaintiff has been using the common lane for taking Lorry, Tractor and Cart. It is further alleged that leaving only 6 3/4 feet, the Defendant has encroached into the lane and put up the construction. In the Written Statement, the Defendant has denied the existence of the common lane. Plaintiff's Side evidence was completed. When the Defendant D.W.1 was in the box during Cross-examination, the Defendant has denied that the lane is a common lane. When the Photograph was shown, the Defendant has also denied the location of the lane in between the houses of the Plaintiff and the Defendant. The answers of D.W.1 in the Cross Examination are relevant to be noted:- 11. In view of the denial of the Defendant that the lane is common lane both in the Written Statement and in evidence, the Plaintiff has filed the Application for Appointment of Advocate Commissioner. The answers of D.W.1 in the Cross Examination are relevant to be noted:- 11. In view of the denial of the Defendant that the lane is common lane both in the Written Statement and in evidence, the Plaintiff has filed the Application for Appointment of Advocate Commissioner. Learned District Munsif has dismissed the Application mainly on the ground that the Application was not filed earlier and filed belatedly at the time when the Suit was in Part Heard stage. The approach of the learned District Munsif is not correct. The Defendant has not only denied the existence of the Cart Track in the Written Statement, but also denied its existence even during cross-examination. The Defendant being his own Brother – the Plaintiff might have perhaps waited in hope for settling the matter amicably. Under such circumstances, the delay in filing the Application does not disentitle the Plaintiff from filing the Application. 12. One of the reason for declining to appoint Advocate Commissioner is that the Plaintiff has not produced documents showing his exclusive right over the Suit lane. Learned District Munsif has observed: This Court is unable to endorse this view of the lower Court. It is to be noted that the Plaintiff has not claimed any exclusive right over the lane; but the Plaintiff only claims right of user alleging that the lane is a common lane meant for common enjoyment for the Plaintiff as well as the Defendant. While so, learned District Munsif erred in saying that the Plaintiff has not produced materials showing his exclusive right over the suit lane. 13. Pointing out that the Plaintiff has not sought for appointment of Advocate Commissioner with the help of Surveyor, the lower Court dismissed the Application. No doubt, in the Petition, the Plaintiff has not specifically stated that the Suit Property is to be inspected measured with the help of the Surveyor. Such omission cannot be the reason for refusing to appoint Advocate Commissioner. It is always open to the Court to exercise the discretion in appointing the Advocate Commissioner with a direction to take the qualified Surveyor to measure the property even when Surveyor's assistance had not been asked for. 14. Even in the Written Statement, in Paragraph 10, the Defendant has denied the existence of the Lane in between the Plaintiff and the Defendant houses. The Written Statement was filed on 17.06.2002. 14. Even in the Written Statement, in Paragraph 10, the Defendant has denied the existence of the Lane in between the Plaintiff and the Defendant houses. The Written Statement was filed on 17.06.2002. The Plaintiff could have done better had he filed the Application at the time of filing of the Suit or atleast after filing of the Written Statement. Perhaps, the Plaintiff was not suitably advised to take the assistance of the Commissioner. The delay in filing the Application cannot be the reason for refusing to afford an opportunity to the Plaintiff to take the Advocate Commissioner and thereby adducing the best attainable evidence. Even according to the Plaintiff, the breadth of the lane is reduced by the disputed construction. The Commissioner cannot note the lane to a breadth of 17 feet. However, the Commissioner could be directed to note down the physical features and measure the properties with the help of the Surveyor and the houses thereon and to note down whether there is any lane in existence and the length and breadth thereon. By appointing the Advocate Commissioner and by his Report, much of oral evidence would be reduced and no prejudice would be caused to the Defendant. 15. When the Defendant is alleged to have put up construction and when the alleged construction put up has encroached the common lane, the best way to find out the construction and the existence is only by Local Inspection by Appointment of Advocate Commissioner. A party has the right to adduce evidence, which by its peculiar nature could be obtained only by the Local Inspection on the Spot. Elaborately going into the Object of Order 26 Rule 9 C.P.C in the decision reported in Ponnusamy Pandaram ..Vs.. The Salem Vaiyappamalai Jangamar Sangam (A.I.R. 1986 MADRAS 33), Nainar Sundaram, J. has held, "....The object of local investigation under O.XXVI R.9 of the Code cannot be belittled. Its object is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in court but could be taken only from its peculiar nature, on the spot. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner, in effect, is a projection of the Court, appointed for a particular purpose. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner, in effect, is a projection of the Court, appointed for a particular purpose. In this regard, the implication of O.XXVI R.10 cannot be lost sight of when it says that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record...." The above case also arose on the similar factual aspects. The dispute has arisen between the Parties where construction put up by the Third Defendant was within his lands or the disputed construction had encroached into the lands of the Plaintiff. On that factual background, learned Judge has observed that the local Inspection is the best way to find out the position by obtaining the evidence before the Court through the local Inspection and that opportunity cannot be shut out. 16. A misconception seems to have weighed in the mind of the Trial Court that the Plaintiff ought to have produced the documents evidencing the existence of the lane to a breadth of 17 feet. The merits of this contention could be gone into only at the time of trial when the parties adduce evidence. At this initial stage, it would be too pre-mature to expect the Plaintiff to produce the documents substantiating his contention nor would it be proper to decline to appoint Advocate Commissioner on that score. 17. By declining to appoint Advocate Commissioner, there has been failure to exercise the discretion vested in the Trial Court. The Impugned Order suffers from serious infirmity and cannot be sustained. 18. For the reasons stated above, this Civil Revision Petition is allowed, setting aside the order dated 11.06.2003 made in I.A.No.155 of 2003 in O.S.No.269 of 2001 by the learned Principal District Munsif, Valangaiman at Kumbakonam. In the circumstances of the case, there is no order as to costs. Learned Principal District Munsif, Valangaiman is directed to appoint Advocate Commissioner within a period of Two Weeks from the date of receipt of a copy of this order issuing Warrant to the Commissioner to make the local Inspection pursuant to the Petition Prayer and to direct him to submit his Report with Plan drawn to Scale measuring the property with the help of a qualified Surveyor. On receipt of the Report, Learned Principal District Munsif, Valangaiman is further directed to proceed with the matter in accordance with law.