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2005 DIGILAW 990 (MAD)

Sivagurunathan v. Ramalingam & Others

2005-07-01

R.BANUMATHI

body2005
Judgment :- This revision is preferred against the order of District Munsif Mannargudi, made in I.A.No.78/2003 in O.S. No.109/2002, dismissing the application under Or.26 R.9 CPC, filed to appoint Advocate Commissioner. 2. O.S.No.109/2002 :- Suit property refers to 22 cents in S.No.151/16A Ullikottai Village. Case of the Plaintiff is that suit property belongs to him ancestrally. The Plaintiff, and previously, his father have put up hay stake and manure pit. The Defendants are having the property adjacent to the suit property. In their property, there was a house which was in dilapidated condition. The Defendants have been asking the Plaintiff to sell the suit property, which the Plaintiff has refused. The Defendants have been trying to measure the property with Surveyor including the suit property, which was prevented by the Plaintiff. Protesting the same, Plaintiff had also lodged a police complaint. Since the Defendants are continuously causing interference to the Plaintiff's possession and enjoyment of the suit property, the Plaintiff has filed the suit for Permanent Injunction. 3. The first Defendant has filed the Written Statement contending that the Plaintiff is entitled to only the total extent of 11 cents in S.No.151/17, 18, 19, 20, 21. The Plaintiff does not own or is in possession of the property in S.No.151/16A. In the 11 cents which the Plaintiff is entitled, the Plaintiff's brother Venkataraman has put up a terrace house and is in enjoyment of the same. The Defendant's predecessors in title are entitled to the property in S.No.151. They have purchased the same under various Sale Deeds referred to in Paragraph 6 of the Written Statement. When the Plaintiff is entitled to only 11 cents, he cannot claim more than that extent – 22 cents. The Plaintiff is not entitled to the property in the Suit Survey Number. His 11 cents is located in S.Nos.151/17 to 151/21. 4. I.A.No.78/2003 :- Since the Defendants have denied the location, extent of possession of the property by the Plaintiff and the location thereon, the Plaintiff has filed this application for appointment of Advocate Commissioner. According to the Plaintiff, he has been in possession and enjoyment of S.No.151/16-A – 22 cents. His 11 cents is located in S.Nos.151/17 to 151/21. 4. I.A.No.78/2003 :- Since the Defendants have denied the location, extent of possession of the property by the Plaintiff and the location thereon, the Plaintiff has filed this application for appointment of Advocate Commissioner. According to the Plaintiff, he has been in possession and enjoyment of S.No.151/16-A – 22 cents. According to the Plaintiff, Defendants own their lands in the adjacent property and they have no manner of right in the suit S.No.151/16-A. Hence the Plaintiff has sought for appointment of Advocate Commissioner to measure the suit property and with the help of a Surveyor and to file the report thereon. 5. The Defendants have resisted the application contending that already Surveyor has measured the suit property and the surrounding properties several times. It is alleged that the Plaintiff has to prove his possession only by producing the documents and cannot seek for appointment of Advocate Commissioner for measuring the suit property and thereby, bring out the factum of possession. 6. Upon consideration of the contentions of both parties, the learned District Munsif declined to appoint an Advocate Commissioner finding that the Plaintiff cannot seek for issuance of Commission to note down his possession. The lower Court held that the suit has been filed only for Permanent Injunction and that the possession is to be proved only by adducing oral and documentary evidence and that the Commissioner cannot be appointed. Further it has been observed that the trial proceedings would be delayed by the appointment of Advocate Commissioner. 7. Aggrieved over the dismissal of the application, the Revision Petitioner/Plaintiff has preferred this revision. The learned counsel for the Revision Petitioner/Plaintiff has contended that the appointment of Advocate Commissioner is necessary to find out in which survey number the suit property is located. Submitting that the appointment of Advocate Commissioner is very much essential, the learned counsel urged to set aside the impugned order. 8. Countering the arguments, the learned counsel for the Respondents/Defendants has submitted that the entitlement of the Plaintiff to an extent of 22 cents in suit S.No.151/16A is to be proved only by documentary evidence. The learned counsel for the Respondents/ Defendants has further submitted that the Commissioner cannot be appointed to note down the factum of possession and the entitlement of the Plaintiff. The learned counsel for the Respondents/ Defendants has further submitted that the Commissioner cannot be appointed to note down the factum of possession and the entitlement of the Plaintiff. The learned counsel has further submitted that the learned District Munsif was right in declining to appoint the Advocate Commissioner and that the impugned order is to be sustained. 9. Whether there is proper exercise of discretion in declining to appoint Advocate Commissioner and whether the impugned order suffers from material irregularity warranting interference is the main point that arises for consideration. 10. Suit property relates to : "151/16 g[jpa g[y vz;/151/16 V/y; 0/22 brz;l; g[";ir kid ///// ehd; bfy;iy fpHf;fpy; Fsk; nkw;fpy; ghyRg;gpukzpad; kid tlf;fpy; ghyRg;gpukzpad; kid bjw;fpy; brhUghde;jk; kw;Wk; tPjp tPL/" Case of the Plaintiff is that the suit property is ancestral property and that he and his father had been in enjoyment of the same for a long time. Along with the Plaint, the Plaintiff has produced a number of documents. According to the Plaintiff, he is entitled to 22 cents in suit S.No.151/16A. The defence is that the Plaintiff is entitled to only 11 cents. The extent to which the Plaintiff is entitled to as per the documents, remains to be seen. The location of the property and the area which is in possession of the Plaintiff could be resolved in appointment of Advocate Commissioner and directing him to measure the suit property with the help of Surveyor. 11. In the petition, the Plaintiff has sought for appointment of Advocate Commissioner to note down the physical features and also to measure the suit property with the help of Surveyor and to submit a report with a plan drawn to scale. But the learned District Munsif dismissed the application on the ground that the application has been filed seeking for issuance of Commission to note down the possession and the existence of house. There is no proper exercise of discretion and the impugned order suffers from serious infirmity. When the location of the Plaintiff's property and the extent is denied, Commissioner ought to have been appointed for effectively adjudicating the dispute. Report of the Advocate Commissioner and the Plan drawn to scale would considerably reduce the oral evidence which aspect was not taken into consideration by the lower Court. 12. When the location of the Plaintiff's property and the extent is denied, Commissioner ought to have been appointed for effectively adjudicating the dispute. Report of the Advocate Commissioner and the Plan drawn to scale would considerably reduce the oral evidence which aspect was not taken into consideration by the lower Court. 12. When the controversy between the parties is about the area of the land or the identification or the location of the land, local investigation by a Commissioner is necessary. It would clarify the location and extent in which the Plaintiff is in possession and would explain any doubtful points on the evidence on record. When there is a dispute over the extent, measuring of the suit property with the help of Surveyor and the Plan thereon would considerably reduce the oral evidence. The object of local investigation is to obtain evidence which could be based on only from the spot and the inspection. Report of the Advocate Commissioner would enable the Court to properly and correctly understand and assess the evidence on record in resolving the contentious points. 13. Issue of commission to find out the location of 22 cents viz., whether it is situated in S.No.151/16A or in other Survey Number is a necessary one and it would not amount to collection of evidence or factum of possession. Where the dispute is regarding the extent of suit property, the trial Court ought to have appointed the Commissioner directing him to measure the suit property with the help of a qualified Surveyor. 14. While inspecting and measuring the suit property and noting the physical feature, incidentally it might bring forth the possession of the Plaintiff or otherwise. On that score, it cannot be said that the Commissioner is sought to be appointed to bring out the factum of possession. In the light of the defence set forth by the Defendants, denying the location and extent, the learned District Munsif was not right in declining to issue the Commission. 15. One of the reasons for declining appointment of Advocate Commissioner is that the issuance of Commission is to delay the proceedings. There seems to be no intention on the part of the Plaintiff to delay the trial proceedings. Suit was filed on 16.9.2002. Written Statement was filed on 26.12.2002 wherein the Defendants have set forth the defence denying the right of the Plaintiff in suit S.No.151/17 to 151/21. There seems to be no intention on the part of the Plaintiff to delay the trial proceedings. Suit was filed on 16.9.2002. Written Statement was filed on 26.12.2002 wherein the Defendants have set forth the defence denying the right of the Plaintiff in suit S.No.151/17 to 151/21. In the light of the defence set forth in the Written Statement, the Plaintiff has filed the application for appointment of Advocate Commissioner on 25.2.2003. Filing of the Commission petition was in February 2003, without much delay. The learned District Munsif has observed that the submission of the Report and plan might take some time. That cannot be the reason to deny the opportunity to the Plaintiff to place best attainable evidence. 16. By refusing to appoint Advocate Commissioner, there is failure to exercise the discretion, which is likely to cause serious prejudice to the Revision Petitioner/ Plaintiff. The impugned order cannot be sustained and this revision is to be allowed. 17. For the reasons stated above, the order of District Munsif Mannargudi, made in I.A.No.78/2003 in O.S. No.109/ 2002, is set aside and this revision is allowed. Consequently, CMP 16337/2003 is closed. In the circumstances of the case, there is no order as to costs. 18. The learned District Munsif Mannargudi is directed to appoint an Advocate Commissioner and issue warrant pursuant to the prayer in the petition.