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2005 DIGILAW 758 (MAD)

R. Narashimmachari v. Meenakshi Ammal

2005-04-28

R.BANUMATHI

body2005
Judgment :- (PRAYER: Revision filed against the order passed in I.A.No. 855/2002 in O.S.No.1352/85 on the file of the Additional District Munsif, Madurai Town.) This revision is preferred against the order passed in I.A.No. 855/2002 in O.S.No.1352/85 on the file of the Additional District Munsif, Madurai Town, dismissing the Petition filed under Or.26, R.9 CPC, seeking for appointment of second Advocate Commissioner. 2. O.S.No.1352/1985: - The suit property relates to 15 cents in Eastern Portion of T.S.No.2431/4. Case of the Plaintiff is that suit property along with T.S.No.2432 on the Eastern side comprising an extent of 99 cents was allotted to his share in the family partition between the Plaintiff and his father and brothers on 31.7.1949. Ever since the date of partition, the Plaintiff has been in possession and enjoyment of the property by paying kist etc. and that the property was used as cultivable land about 5-6 years prior to the filing of the suit, the suit property and the surrounding places had become pucca house sites and constructions were put up. Without any right or interest in the suit property, the Defendants have encroached the suit property and put up the construction. When being questioned, the Defendants have stated that they have purchased the property from one Chokkalingam Pillai S/o Ramasamy Pillai. When the Plaintiff has measured the land with the help of surveyor, it was noted that the Defendants have encroached upon the property and have put up unauthorised constructions. The Defendants have joined together and wrongfully trespassed upon the suit property claiming title through Chokkalingam Pillai. Hence the Plaintiff filed suit against all the Defendants for recovery of the possession and for mesne profits. 3. Denying the averments in the Plaint and denying the title of the Plaintiff in the suit property, the Defendants have filed Written Statement contending that they have purchased 1.14 acres out of 1.29 acres in S.No.2431/4. The vendor Ramasami Pillai had divided the property into several plots. The Defendants 2 to 5 have purchased their respective plots from the said Chockalingam Pillai S/o Ramasami Pillai and have put up construction. Defendants 2 to 5 are in possession and enjoyment of their respective plots. They have also formed a road running North to South on the Eastern side of their constructed side. The Plaintiff was never in enjoyment of the suit property and is not entitled for recovery and possession. 4. Defendants 2 to 5 are in possession and enjoyment of their respective plots. They have also formed a road running North to South on the Eastern side of their constructed side. The Plaintiff was never in enjoyment of the suit property and is not entitled for recovery and possession. 4. I.A.No.1017/1989: - In this Petition, a Commissioner was appointed to inspect the suit property and to measure the same with the help of the Surveyor. The Commissioner had visited the suit property and measured the suit property and the location at S.Nos.2431/4 and 2432 with the help of the Surveyor. Memo of instructions was also given to the Commissioner by the Plaintiff. The Commissioner inspected the suit property on 13.4.1990 and filed the report on 12.6.1990. Along with his report, the plan, drawn to scale is also enclosed. In the suit, trial commenced. Plaintiff – PW-1 was examined and cross examined. DW-1 was in the box and the case was adjourned for cross-examination. 5. When the case was part heard, the Petitioner/ Plaintiff has filed I.A.No.855/2002 seeking for appointment of Advocate Commissioner for the purpose of locating the suit property and to note the extent of encroachment made by the Defendants. According to the Plaintiff, the Defendants have disputed the property and that one can come to the conclusion only on knowing the location of the disputed property whether it lies within the property of the Plaintiff or lies in the property of the Defendants. 6. Petition for appointment of another Advocate Commissioner was strongly objected to by the Defendants on the ground that already, the Commissioner has filed his report in I.A.No.1017/1989. It is stated that without scrapping the first Commissioner's Report, the application for appointment of the second Commissioner/revisit of the Commissioner does not arise. 7. Upon consideration of the rival contentions, the learned District Munsif dismissed the Petition on the following grounds: - "(i) Already a comprehensible Commissioner Report is available; (ii) Application for appointment of Advocate Commissioner has been filed belatedly when the case is in part heard; (iii) Without setting aside the earlier report, Petition for appointment of another Advocate Commissioner is not maintainable". 8. Aggrieved over the impugned order, the Revision Petitioner/Plaintiff has preferred this revision Petition. Respondents 2 to 8 have been served. Notice to the first Respondent returned unserved. Respondents have not entered appearance. Service held sufficient. 8. Aggrieved over the impugned order, the Revision Petitioner/Plaintiff has preferred this revision Petition. Respondents 2 to 8 have been served. Notice to the first Respondent returned unserved. Respondents have not entered appearance. Service held sufficient. Since the suit is of the year 1985 and the revision is of the year 2003, the Revision Petition is taken up for final hearing. Arguments of the Revision Petitioner heard. 9. The point that arises for consideration is, when the Commissioner's Report is filed, with plan, drawn to scale, whether the Plaintiff is entitled to seek for appointment of Commissioner for the second time and whether the impugned order declining appointment of second Advocate Commissioner suffers from any infirmity. 10. In I.A.No.1017/1989, Commissioner was appointed. Warrant was issued to the Commissioner to measure the suit property with the help of the Surveyor and to file the report with the plan drawn to scale. Accordingly, the Commissioner has taken assistance of Town Surveyor (East Madurai Corporation) and measured the suit property fixing the Survey Stones. The plan, drawn to scale is part of the Advocate Commissioner's Report. In his Report, the Advocate Commissioner has shown T.S.2432 owned by the Plaintiff in Red colour. 15 cents owned by the Plaintiff in S.No.2431/4 is shown in Yellow Colour. Site and the constructed house of the Defendant in T.S.2431/4 is shown in violet colour. The Commissioner has noted the regular pathway running North to South on the Eastern side of the Defendants' houses which is the only access to the Defendants house. The Commissioner has also noted that the ground level on the Southern side and constructed houses in T.S.2431/4 is lower than the northern side. Thus the Advocate Commissioner's Report clearly elucidates the physical features. The plan drawn to scale supplements the report. The Plaintiff has also given Memo of instructions to the Commissioner. After the report was filed, the Plaintiff has also filed objections to the Commissioner's Report. Thus the earlier Commissioner's Report is comprehensive one. 11. It is only when there are factual errors or when the report is unsatisfactory, the Plaintiff can seek for appointment of second Commissioner. There cannot be any discriminate appointment of more than one Commission merely because it is sought for by the Plaintiff. No satisfactory grounds are made out for seeking for appointment of second Advocate Commissioner; that too, when the trial has been in progress. There cannot be any discriminate appointment of more than one Commission merely because it is sought for by the Plaintiff. No satisfactory grounds are made out for seeking for appointment of second Advocate Commissioner; that too, when the trial has been in progress. Repeated appointment of Commissioners will not create a healthy practice. It might lead the party to the proceedings not being satisfied with the earlier Commissioner's Report seeking for appointment of successive Commissioners, which cannot be permitted. 12. The earlier Commissioner's report with the plan drawn to scale is clear indicating the physical features and marking the respective portions. No sufficient grounds are made out for appointment of second Commissioner. The contention of the Plaintiff that the Defendants have encroached and the extent of encroached portion is to be noted has no force. 13. The belated stage in which the application is filed is also to be noted. The suit is of the year 1985. After 17 years, trial commenced in 2001. The Plaintiff was examined by appointment of Commissioner in I.A.No.712/01. The Plaintiff was cross-examined by the Defendant counsel on 22.10.2001. Plaintiffs' side evidence was closed nearly after one year on 26.9.2002. The Defendant was examined in Chief in 10.10.2002. The case was posted for cross examination of DW-1. At this stage, the Petition was filed for appointment of Commissioner. The previous Commissioner has visited the property in 1990, about 12 years ago. In seeking appointment of second Commissioner, after commencement of trial, there is lack of bonafide. The learned District Munsif has rightly pointed out that by this time, the entire structure and location of the property could have changed and the Petitioner has filed the Petition only to fill up the lacuna. 14. Pointing out the belated stage in which the application was filed and since earlier Commissioner's Report is available, the learned District Munsif has rightly dismissed the Petition for appointment of second Advocate Commissioner. The impugned order does not suffer from jurisdictional error warranting interference. This revision has no merits and is bound to fail. 15. Therefore, the order of the Additional District Munsif Madurai, made in I.A.No.855/2002 in O.S.No.1352/1985 is confirmed and this revision is dismissed. Since the suit is of the year 1985, the Additional District Munsif, Madurai is directed to dispose of the suit within four months from the date of receipt of a copy of this order. 15. Therefore, the order of the Additional District Munsif Madurai, made in I.A.No.855/2002 in O.S.No.1352/1985 is confirmed and this revision is dismissed. Since the suit is of the year 1985, the Additional District Munsif, Madurai is directed to dispose of the suit within four months from the date of receipt of a copy of this order. In the circumstances of the case, there is no order as to costs.