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2006 DIGILAW 1869 (MAD)

Rajeswari v. Nagarajan & Others

2006-07-26

P.SATHASIVAM

body2006
Judgment :- 1. The above Civil Revision under Article 227 of the Constitution of India is directed against the order of the learned District Munsif, Thiruvaiyaru, dated 27.12.2004, made in I.A. No. 431/2004 in O.S. No. 25/2004, in and by which the learned District Munsif directed the earlier Commissioner, namely G. Krishnasamy, to inspect the property in question once again and submit a report. 2. Heard the learned counsel for the petitioner as well as the contesting first respondent. 3. Before considering the order of the learned District Munsif, it is useful to refer the reasons stated in the affidavit filed in support of the said Application. In the affidavit, it is stated that when the Commissioner inspected the suit property on the earlier occasion, the petitioner/3rd defendant submitted a memo,, dated 31.3.2004. It is further stated that since the Commissioner has failed to take note of the same in his report submitted to the Court, the same Commissioner has to be asked to visit the suit property once again and submit a report with reference to the memo given by him. 4. It is not in dispute that on the earlier occasion in I.A. No. 35/2004, at the instance of the 3rd defendant, the first respondent herein, a Commissioner was appointed and after due notice to the parties and due inspection of the suit property, the Commissioner submitted a report on 20.6.2004. It is also not in dispute that the first respondent, at whose instance the Commissioner was appointed, also submitted his objection. That being so, merely on the ground that the memo dated 31.3.2004 submitted by him has not been noted by the Commissioner, the 3rd defendant has prayed for further direction to the Commissioner for inspection of the property once again and to file a report. In the affidavit filed in support of the Application, except referring the memo, dated 31.3.2004, as rightly pointed out by the learned counsel for the petitioner, even the details of request made or direction are not mentioned. In such circumstances, I am of the view that the learned District Munsif is not justified in once again directing the Commissioner to visit the suit property and submit a report. As stated earlier, on the direction of the Court, on the earlier occasion, the Commissioner, along with the help of a surveyor, inspected the property and filed a report. In such circumstances, I am of the view that the learned District Munsif is not justified in once again directing the Commissioner to visit the suit property and submit a report. As stated earlier, on the direction of the Court, on the earlier occasion, the Commissioner, along with the help of a surveyor, inspected the property and filed a report. It is not in dispute that the parties cannot lay their hands only with the support of the Commissioner's report or his plan. It is for them to specifically allege and substantiate the same by acceptable oral and documentary evidence. The Commissioner's report may be one piece of evidence in support of their case and in this case the said report and other details are available before the Court. 5. In such circumstances, the order of the learned District Munsif, Thiruvaiyaru, dated 27.12.2004, made in I.A. No. 431/2004 in O.S. No. 25/2004, is set aside. The Civil Revision Petition is allowed. No costs. Connected C.M.P. (MD) No. 2001 of 2005 is closed.