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2005 DIGILAW 566 (MAD)

K. Ramasamy v. M. Swaminathan & Others

2005-03-31

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- The first respondent in I.A.No.1476 of 2003 and plaintiff in O.S.No.281 of 2002 on the file of the Court of District Munsif, Tiruppur, is the revision petitioner in this Civil Revision Petition. 2. This revision is directed against the order dated 07.6.2004 and made in I.A.No.1476 of 2003 in O.S.No.281 of 2002 on the file of the Court of District Munsif, Tiruppur, wherein the trial Court allowed the petition filed by the defendants 1 and 2 for appointment of Advocate Commissioner to measure the suit property and the property owned by defendants 1 and 2 on the basis of the documents, assisted by a Land Surveyor, and also directed to file the report and rough sketch. 3. The plaintiff filed the suit in December, 2002 for permanent injunction restraining the defendants 1 and 2 from constructing and running any factory close to the property described in the schedule comprising S.F.No.668 in Nallur Village. It is stated that the suit property was purchased by the father of the plaintiff as per registered sale deed dated 18.3.1987. The plaintiff purchased an extent of 50 cents on the southern portion of the suit property on 16.4.1992 and he has been residing there by constructing two residential houses as per the plan approved by the third defendant Nallur Panchayat. It is further stated that the father of the plaintiff executed a registered settlement deed dated 21.4.1999 in favour of the plaintiff in respect of the northern 30 cents and he also executed another settlement deed dated 04.02.2002 in favour of the plaintiff in respect of the remaining 10 cents and as such, the plaintiff is the absolute owner of the entire extent of the suit property. The first defendant is the father of the second defendant and they own property of about one acre immediately on the east of the suit property. According to the plaintiff, the suit property is situate in a purely residential area and there is J.M.M.S. School and a Girls' College opposite to it and further, several residential houses are situate close to the suit property. It is stated that the defendants are making arrangements to construct a very big Banian Factory close to the residence of the plaintiff. Though the defendants stated in the beginning that they are constructing only housing plots, now they are making arrangements to convert the same into a factory building. It is stated that the defendants are making arrangements to construct a very big Banian Factory close to the residence of the plaintiff. Though the defendants stated in the beginning that they are constructing only housing plots, now they are making arrangements to convert the same into a factory building. Therefore, the plaintiff has come forward with the suit seeking for permanent injunction as set out above. 4. The suit was resisted by the second defendant in the written statement filed on 14.01.2003. 5. The second defendant filed I.A.No.1476 of 2003 on the file of Court of District Munsif, Tiruppur, seeking to appoint an advocate-commissioner for the purpose of demarcating the boundary with the help of Taluk Surveyor, Tiruppur, as per the plan registered with the sale deeds dated 18.3.1987. 6. The trial Court allowed the petition filed by the defendants 1 and 2 for appointment of Advocate Commissioner to measure the suit property and the property owned by defendants 1 and 2 on the basis of the documents, assisted by a Land Surveyor, and also directed him to file the report and rough sketch. The said order is under challenge in this revision. 7. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 8. The learned counsel for the revision petitioner submitted that the suit is filed only for grant of permanent injunction restraining the defendants from putting up any construction and from running any factory close to the suit property. It is also argued that the second defendant has made an averment in the written statement that he will initiate legal action for removal of the illegal encroachment by the revision petitioner/plaintiff on the west of the new building put up by him and the revision petitioner also reserved his right to file separate suit for removal of encroachment made by the respondents 1 and 2 as stated in the plaint. Learned counsel further submitted that the issue involved in the suit is only with regard to the injunction that the construction put up by the respondents 1 and 2 for the purpose of running Baniyan factory cannot be allowed in view of the fact that the area is a residential locality and J.M.M.S.School and a Girls' College are also situate opposite to it. In this regard, learned counsel relied on the decision of this Court in UPAGARA MARIE ANDIRE, REPRESENTED BY POWER OF ATTORNEY, SRI ANDRE vs. SAMARAJ ( 1978 (II) M.L.J. 517 ) wherein the order of the trial Court appointing Advocate Commissioner for unpaid sale consideration was set aside. Learned counsel for the revision petitioner, by referring to Order XXVI Rule 9 C.P.C., submitted that the appointment of advocate commissioner as sought for by the respondents 1 and 2 is not warranted and, therefore, the order of the trial Court appointing an advocate commissioner to measure the property owned by the parties is liable to be set aside. 9. Learned counsel for the respondents/defendants 1 and 2 submitted that inasmuch as the contentions have been put forth in the plaint as well as in the written statement with regard to the encroachments made by the revision petitioner and the respondents 1 and 2, the appointment of Advocate Commissioner by the trial Court to find out the dispute and to measure the properties owned by the parties cannot be said to be improper. It is further submitted that only if the report and rough sketch are filed by the Advocate Commissioner as ordered by the trial Court, the issue involved in the suit as to whether the revision petitioner is entitled for injunction or not can be decided. 10. There is no force in the argument advanced by the learned counsel for the respondents 1 and 2. It is seen that the issue involved in the suit is with regard to grant of permanent injunction from putting up construction by the respondents 1 and 2 for the purpose of running Baniyan factory adjacent to and east of the suit property. Inasmuch as the revision petitioner as well as the respondents 1 and 2 state that either of them have encroached their properties and they have reserved their right to file separate suit, appointment of Advocate Commissioner to measure the suit property and the adjacent property owned by the respondents 1 and 2 cannot be said to be proper. As per Order XXVI Rule 9 C.P.C., commission can be issued for the purpose of local investigation and to file report in the event of deciding the matter in dispute only after ascertaining the market value of the property or mesne profits or damages or annual net profits. As per Order XXVI Rule 9 C.P.C., commission can be issued for the purpose of local investigation and to file report in the event of deciding the matter in dispute only after ascertaining the market value of the property or mesne profits or damages or annual net profits. As rightly argued by the learned counsel for the revision petitioner/ plaintiff, there is no necessity for appointment of Advocate Commissioner in this case as the issue involved in the suit is for grant of injunction from putting up construction by the respondents 1 and 2 for the purpose of running baniyan factory adjacent to and on the east of the suit property. Therefore, the order of the trial Court appointing Advocate Commissioner being erroneous and improper is liable to be set aside. 11. In the result, Civil Revision Petition is allowed. No costs. The order dated 07.6.2004 and made in I.A.No.1476 of 2003 in O.S.No.281 of 2002 on the file of the Court of District Munsif, Tiruppur, is set aside. Consequently, C.M.P. No.13636 of 2004 is closed.