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2005 DIGILAW 1435 (MAD)

Ku. Palchamy & Another v. Commissioner

2005-08-25

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Article 227 of The Constitution of India against the order and decretal Order dated 01.09.2003 made in I.A.No.444 of 2003 in O.S.No.71 of 2002 on the file of District Munsif Court, Uthamalapalaym.) The Plaintiffs in O.S.No.71 of 2002 on the file of District Munsif Court, Uthamapalayam are the Revision Petitioners. Aggrieved over the order of dismissal of their Application dated 01.09.2003 in I.A.No.444 of 2003 in O.S.No.71 of 2002 dismissing their application filed under Or.29 R.9 and Sec. 151 C.P.C. declining to appoint Advocate-Commissioner, the Plaintiffs have preferred this Revision Petition. 2. Relevant facts for disposal of this Revision could briefly be stated thus: The Suit Property relates to T.S.No.12/1 Kambam Town, Uthamapalayam Taluk. The Plaintiffs claimed to represent Devendrakula Vellalar of Kambam. Case of the Plaintiffs is that the Suit Property within the four boundaries thereon has been received by Devendrakula Vellalar Community as a Burial Ground for more than 100 years. Every year, the Community people perform rites for the dead. On the Western Side of the Suit Property, Bus Stand of Kambam Town is located. Kambam Municipality has proposed to extend the Bus Stand. Under the guise of extending the Bus Stand, the Municipality is trying to encroach upon the Suit Property. Alleging that if the Municipality encroaches upon the Suit Property, it would cause serious prejudice to the Plaintiffs' Community people, the Plaintiffs have filed the Suit for Permanent Injunction restraining the Defendant-Municipality from in any way interfering with their possession of the Suit Property. 3. The Defendant-Municipality has filed the Written Statement stating that the Suit Property - T.S.No.12/1 was never in the possession of the Plaintiff nor they use the same as Burial Ground. The Suit Property is a Poramboke Land and it belongs to the Government. The Suit Property is used as a pathway and the Public are using the same as pathway. By the Western Side of the Suit Property, new Bus Stand was constructed and the Plaintiffs cannot have a claim over the Suit Property nor any right over the Suit Property. 4. The Trial commenced, the Plaintiffs' evidence was closed. On the side of the Defendant, D.W1 - Surveyor was examined and the Survey Register pertaining to the Suit Property was marked as Ex.B-1. 4. The Trial commenced, the Plaintiffs' evidence was closed. On the side of the Defendant, D.W1 - Surveyor was examined and the Survey Register pertaining to the Suit Property was marked as Ex.B-1. At that stage, I.A.No.444 of 2003 was filed by the Plaintiffs seeking for appointment of Advocate-Commissioner under Or.26 R.9 C.P.C. According to the Plaintiffs, they have fenced the Suit Property by implanting stones. According to them the Suit Property is not used as a pathway as alleged by the Defendant-Municipality. Since the Suit Property is used as a Burial Ground, noting down the physical features would bring out the relevant aspects and hence appointment of Advocate-Commissioner was sought for. 5. The above Application was resisted by the Defendant-Municipality by filing the counter statement alleging that the Application has been belatedly filed after the Plaintiffs' evidence was closed. Since the Suit Property has been used as Cart Track, the Plaintiffs cannot seek for appointment of Advocate-Commissioner to prove their possession. The Application has been filed by the Plaintiffs only to drag on the further proceedings. 6. Finding that no documentary evidence has been produced by the Plaintiffs showing their right and possession in the Suit Property, the learned District Munsif found that the Plaintiffs cannot seek for appointment of Advocate-Commissioner and for making enquiry about the factum of possession. The Learned District Munsif observed that before seeking for appointment of Advocate-Commissioner, the Plaintiffs are bound to produce the document and records evidencing their possession and right to be in possession. 7. Assailing the impugned order, the learned counsel for the Revision Petitioners/Plaintiffs submitted that the Lower Court has not properly appreciated the scope of the Application, in which the Plaintiffs have sought for appointment of Advocate-Commissioner to note down the physical features. The learned counsel has further submitted that in the light of the dispute between the parties, noting down the physical features is very much essential to adjudicate the matter in issue. Submitting that in a suit for Permanent Injunction, where the Plaintiffs have alleged, attempt of encroaching by the Defendant, the learned counsel contended that the Lower Court ought to have allowed the Application appointing the Advocate-Commissioner. In support of her contention, the learned counsel has placed reliance upon AIR 1996 Kerala 276 (Payani Achuthan V. C.h. Fisheries Development Co-operative Society) 8. In support of her contention, the learned counsel has placed reliance upon AIR 1996 Kerala 276 (Payani Achuthan V. C.h. Fisheries Development Co-operative Society) 8. Countering the arguments, the learned Additional Government Pleader has submitted that there could be no appointment of Advocate-Commissioner to prove the factum of possession. The Learned Additional Government Pleader has further submitted that when the Defendant-Muncipality has denied the user of the Suit Property as Burial Ground and when it is alleged that the Suit Property has been used as Cart Track, that material issue cannot be determined by appointing Advocate-Commissioner and thereby noting the factum of possession. In support of his contention the learned Additional Government Pleader has relied upon the decision reported in AIR 1996 Karnataka P.257 (Puttappa V. Ramappa) 9. The following points arise for consideration in this Revision: i) When the Suit Property is admittedly a Government Land, pre-supposing their possessory right, can the Plaintiffs seek for appointment of Advocate-Commissioner to note down the physical features? ii) Whether the impugned order suffers from perversity or irregularity warranting interference exercising the supervisory jurisdiction? 10. Admittedly, the Suit Property in T.S.No.12/1 with the specific measurements and the stated boundaries thereon (in the Plaint Schedule) is the Government Land. Case of the Plaintiffs is that Devendrakula Vellalar Community have been using the Suit Property as Burial Ground and the same is used for performing rites for the dead. Denying the same, the Defendant contended that the Suit Property is used by the Public as Cart Track. The existence of 'MAYANAM' or otherwise is a material issue to be adjudicated by the court in consideration of the evidence adduced by the parties. That material issue could never be left to the Commissioner. 11. Contending that when the encroachment upon the Plaintiffs' land is alleged by the Plaintiffs, the Lower Court ought to have appointed Advocate-Commissioner for noting the physical features, the learned counsel for the Revision Petitioners/Plaintiffs has relied upon AIR 1996 Kerala 276 (Payani Achuthan V. C.H.Fisheries Development Co-operative Society). In the said case, the Plaintiffs were having possessory right/doing fishing operations in 95 Acres of land. The Defendant and others were assigned 105 Acres out of the total extent of 200 Acres to have an Aqua Farm. In the said case, the Plaintiffs were having possessory right/doing fishing operations in 95 Acres of land. The Defendant and others were assigned 105 Acres out of the total extent of 200 Acres to have an Aqua Farm. In the Suit filed by the Plaintiffs for Permanent Injunction, in the factual aspects of the case, finding that a clear demarcation of the property is necessitated, the Kerala High Court held that appointment of Advocate-Commissioner is essential. The case in hand stand on different footing. The Suit Property is a Government Land. The Plaintiffs' possession and possessory right is a matter to be adjudicated upon. If really the Plaintiffs are having any such possessory right, evidencing the same, the Plaintiffs could well produce 'B Memo' charges levied in favour of the Plaintiffs' Community people or the Plaintiffs could well produce the documents to show the true owner - the Government had recognised their possession. The appointment of an Advocate-Commissioner pre-supposes the existence of possession and possessory right of the Plaintiffs. The Suit Property being a Government Land where the user of the Plaintiffs is highly in dispute, appointment of Advocate-Commissioner to note down the physical features would be improper. The physical features of importance are to be proved only by adducing appropriate evidence. 12. The learned counsel for the Revision Petitioners/Plaintiffs has drawn the attention of the Court to the Plaint averments (Para 5) wherein the Plaintiffs have alleged that they have implanted stones of 5-6 feet numbering about 56 on the Western Side and also numbering 36 on the Eastern Side. It is also alleged that on the Eastern side, there is a brick wall. In para 6, it is alleged that the Suit Property has also been used for performing the poojas, rites and that the physical features are very much essential for the just decision of the case. If the Commissioner is to be appointed to note down the existence of the stones or otherwise would only amount to obtaining of evidence. The Commissioner cannot be appointed to collect those aspects evidencing the factum of possession. 13. If the Commissioner is to be appointed to note down the existence of the stones or otherwise would only amount to obtaining of evidence. The Commissioner cannot be appointed to collect those aspects evidencing the factum of possession. 13. Contending that in a Suit for Permanent Injunction where the question as to who is in possession of the Suit Property is in dispute, the Commissioner cannot be appointed to note down the factum of possession, the learned Additional Government Pleader has relied upon AIR 1996 Karnataka 257 (Puttappa V. Ramappa) wherein the Karnataka High Court has held seeking for appointment of Advocate Commissioner to note down the physical features indirectly amounting to find out as to who is in possession of the property, which cannot be allowed. In any event, the physical features of the Suit Property could only be a piece of evidence for appreciating the evidence on record. The Plaintiffs are to prove their possession and enjoyment of the Government Land by independent evidence and not seek for appointment of Advocate-Commissioner to cover the evidence. 14. The belated stage in which the Application was filed is also relevant to be noted. The Suit is of the year 2002. After the commencement of the trial, witnesses of the Plaintiffs were examined and the Plaintiffs' evidence was closed. The Defendant had examined DW-1 - Surveyor and Ex.B-1- Town Survey Register pertaining to the Suit Property was marked. When the Suit was in the part heard stage, the Application seeking for appointment of Advocate-Commissioner was filed. Since the Suit Property is the Government Land and the possession of the Plaintiffs is seriously disputed, the Plaintiffs were not justified in seeking for appointment of Advocate-Commissioner when the case was in the part-heard stage. 15. This Court finds no jurisdictional error or error apparent on the face of the record warranting interference exercising the supervisory jurisdiction of this Court. This Revision is bereft of merits and is bound to fail. 16. This Revision Petition is dismissed confirming the Order of the District Munsif Court, Uthamapalayam dated 01.09.2003 made in I.A.No.444 of 2003 in O.S.No.71 of 2002 with the cost of the Respondent/Defendant. Consequently, C.M.P.No.15969 of 2003 is also dismissed. 17. The District Munsif, Uthamapalayam is directed to dispose of the Suit in O.S.No.71 of 2002 within a period of two months from the date of receipt of a copy of this order.