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2005 DIGILAW 882 (MAD)

Kanagaraj v. Rajan & Another

2005-06-18

R.BANUMATHI

body2005
Judgment :- This revision arises out of the order of District Munsif, Nagapattinam, made in unfiled I.A. Of 2002 in O.S.No. 196 of 1999 dated 6-3-2002, dismissing the petition filed under Or.26 R.9 C.P.C. declining to reappoint the Advocate Commissioner and to measure the suit property with the help of the surveyor. 2. The facts in nutshell could be stated thus:- The suit property relates to S.No. 176/16 – 0.02 acres in Puthagaram Village. The Plaintiff was granted patta for the suit property. The Plaintiff has put up a thatched hut in the suit property and has been in possession and enjoyment of the same for more than seven years prior to the suit. The Plaintiff has been paying house tax. The first Defendant's property is situated on the adjacent side of the suit property. The first Defendant has asked the Plaintiff to sell a portion of his property, which the Plaintiff has denied. Since then, the first Defendant has developed enmity towards the Plaintiff and has been causing interference to the enjoyment of the suit property by the Plaintiff. On 20-4-1997, the first Defendant and his men attempted to trespass into the suit property and attempted to dismantle his thatched hut, which was prevented by the timely intervention of the mediators. Hence, the Plaintiff has filed the suit for permanent injunction restraining the Defendants from in any way interfering with the enjoyment of the suit property by the Plaintiff. 3. Denying the averments in the plaint, the first Defendant has filed the written statement contending that the description of the property is unclear and vague. According to the first Defendant, the property in S.Nos. 176/15A and 176/15B was purchased by his wife Shanthi, by a sale deed dated 29-07-1966. After the purchase, the land has been reclaimed and fenced on all the four sides and the Defendants are in enjoyment of the same. While so, on 1-5-1997, the Plaintiff has attempted to remove the Eastern side fence and attempted to encroach upon a portion of the property, which was prevented by the Defendants. Since, the first Defendant's wife is the owner of Western side property, the suit is bad for non-joinder of necessary and proper parties. After the written statement was filed, the first Defendant's wife Shanthi was impleaded as the second Defendant. 4. Earlier, the Plaintiff has filed an application for appointment of Commissioner. Since, the first Defendant's wife is the owner of Western side property, the suit is bad for non-joinder of necessary and proper parties. After the written statement was filed, the first Defendant's wife Shanthi was impleaded as the second Defendant. 4. Earlier, the Plaintiff has filed an application for appointment of Commissioner. That application was dismissed, against the order or dismissal, the Revision Petitioner/Plaintiff has already preferred revisions in C.R.P.Nos. 3060 and 3061 of 2001, which were allowed directing the trial Court to appoint an Advocate Commissioner. Pursuant to the order of the High Court, an Advocate Commissioner was appointed in I.A.No. 2 of 2002, who has filed the report along with the plans drawn to scale. 5. The Revision Petitioner/Plaintiff has filed an application under Section 151 C.P.C. to appoint another Advocate Commissioner. In the supporting affidavit, the Plaintiff has contended that the earlier Commissioner's report is against him and that the earlier report contains incorrect measurements. It is further averred that on the date of inspection of the suit property his advocate could not be present and request of the Plaintiff to defer measurement of the suit property was not accepted by the Commissioner and the Commissioner has filed the report with incorrect particulars. Hence, the Revision Petitioner/ Plaintiff has sought for issuance of warrant reappointing Advocate Commissioner and to measure the suit property with the help of surveyor. The application was resisted by the Respondents/Defendants. 6. Upon consideration of the contentions of both parties, pointing out that the Plaintiff had earlier filed Revision Petitions before the High Court and that thereafter, Commissioner was appointed and the Commissioner had filed the report measuring the suit properties with the help of surveyor, the learned District Munsif found that the application for reappointment of an Advocate Commissioner cannot be ordered merely on the ground that the Plaintiff's advocate was not present at the time when the suit property was inspected and measured. 7. Aggrieved over the dismissal of the Plaintiff's application, the Plaintiff has preferred this revision. The learned counsel for the Revision Petitioner/Plaintiff has contended that the lower Court has not properly considered the objections filed by the Plaintiff to the earlier Commissioner's report. 7. Aggrieved over the dismissal of the Plaintiff's application, the Plaintiff has preferred this revision. The learned counsel for the Revision Petitioner/Plaintiff has contended that the lower Court has not properly considered the objections filed by the Plaintiff to the earlier Commissioner's report. It is further submitted that the suit property was not properly measured and that remeasuring of the same is very much essential and the lower Court erred in dismissing the application and seeks for setting aside the impugned order. 8. Countering the arguments the learned counsel for the Respondents submitted that at the time of inspection of the suit property absence of the Plaintiff's counsel cannot be the ground for reappointment of the Advocate Commissioner. Pointing out that the suit is of the year 1999, the learned counsel for the Respondents submitted that this is the second round of litigation and the lower Court has rightly found that the application for re-issuance of Commission was filed to delay the trial proceedings and rightly dismissed the application, which warrants no interference. 9. In the facts and circumstances of the case, whether the order declining to issue the second Commission suffers from any material irregularity calling for interference, is the only point that arises for consideration in this revision. 10. This application has been made for reappointment of the Commissioner and to measure the suit property with the help of the surveyor. Earlier, similar application was filed, which was dismissed. As against the order of dismissal, the Plaintiff has preferred a revision in C.R.P.Nos. 3060 and 3061 of 2001. The High Court allowed the revision petitions. As per the orders of the High Court, the lower Court has appointed the Advocate Commissioner in I.A.No. 2 of 2002. The Commissioner has inspected the suit property on 10-2-2002 and has filed an elaborate report with two plans, one plan drawn to scale. From the Commissioner's report, it is clear that the Commissioner has measured the suit property with the help of the surveyor. In the schedule of the plaint, the suit property is described as under: Measuring the Plaintiff's property the Commissioner has noted that the East West Measurement of 78 feet is not available. The Commissioner's report reads: The Commissioner has further noted that only if the Defendants' property in Survey No. 176/15B is added the extent totally measures 78 feet. In the schedule of the plaint, the suit property is described as under: Measuring the Plaintiff's property the Commissioner has noted that the East West Measurement of 78 feet is not available. The Commissioner's report reads: The Commissioner has further noted that only if the Defendants' property in Survey No. 176/15B is added the extent totally measures 78 feet. That part of the Commissioner's report reads: By careful perusal of the Commissioner's report, it is clear that the report is elaborate and comprehensive and no further clarification is necessiated. 11. Appointment of the second Commissioner is sought for on the ground that the earlier report is against the Plaintiff and further on the basis of the objection filed by the Plaintiff. In the objection to the Commissioner's report, the Plaintiff has stated that the Commissioner has not measured the distance between the suit property in S.No. 176/16 and the Defendants' property in S.No.176/15B. This objection is obviously incorrect. The distance between the house of the Plaintiff in S.No.176/16 and S.No.176/15B has been measured by the Commissioner, who has noted the same as under: The above observation of the Commissioner answers the objection raised by the Plaintiff. Hence, the Plaintiff cannot seek for reappointment of the Advocate Commissioner on the basis of the objection raised by him. 12. When the Commissioner had earlier been appointed, who has inspected and measured the property with the help of surveyor and filed detailed report, unless the Court is dissatisfied with that report another Commission cannot be issued. As noted above, the earlier report is comprehensive with the plan drawn to scale. Hence, it would not be appropriate to issue another Commission. There cannot be indiscriminate appointment of more than one Commissioner merely for the sake of asking it. If the Commissioner is so appointed, it would lead to unhealthy practice of making the parties to seek for appointment of an Advocate Commissioner till he gets a favourable report. Such a course cannot be permitted. 13. The suit is of the year 1999. In the facts and circumstances of the case and since elaborate Commissioner's report is available, the Revision Petitioner/Plaintiff is not justified in seeking for reappointment of the Advocate Commissioner. The learned District Munsif has rightly declined to reappoint the Advocate Commissioner. The impugned order does not suffer from any material irregularity warranting interference. The suit is of the year 1999. In the facts and circumstances of the case and since elaborate Commissioner's report is available, the Revision Petitioner/Plaintiff is not justified in seeking for reappointment of the Advocate Commissioner. The learned District Munsif has rightly declined to reappoint the Advocate Commissioner. The impugned order does not suffer from any material irregularity warranting interference. This revision has no merits and is bound to fail. 14. In the result, the order of District Munsif, Nagapattinam, made in unfiled I.A. Of 2002 in O.S.No. 196 of 1999 dated 6-3-2002, is confirmed and this revision petition is dismissed. Consequently, the connected C.M.P.No. 12869 of 2003 is also dismissed. In the circumstances of the case, there is no order as to costs. Since the suit is of the year 1999, the learned District Munsif is directed to expedite the trial and dispose of the suit as expeditiously as possible.