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2006 DIGILAW 1947 (MAD)

S. Sundarasamy v. S. Saraswathy

2006-08-02

S.RAJESWARAN

body2006
Judgment :- (Revision Petition filed against the order dated 5.11.2004 passed in I.A.No.1837/2004 in I.A.No.22/2003 in O.S.No.18/2003, on the file of the Principal Sub Court, Coimbatore.) This revision petition has been filed against the order made in I.A.No.1837/2004 in I.A.No.22/2003 in O.S.No.18/2003 on the file of the Principal Sub Court, Coimbatore, dated 5.11.2004. 2. The defendant is the revision petitioner. 3. The respondent/plaintiff filed a suit in O.S.No.18/2003 on the file of the District Munsif Court, Coimbatore for permanent injunction to restrain the defendant, their men, agents, servants in any way interfering with peaceful possession and enjoyment of the suit property and for mandatory injunction to direct the defendant to remove the obstruction and remove the fencing stones allegedly put up by the revision petitioner in the suit property, i.e., S.F.No.715/1. 4. The case of the respondent/plaintiff is that she is the owner of the suit property and she has been in possession and enjoyment of the same. While that be so, the defendant put up construction by encroaching 2-1/2 cents on the southern side of the suit property. At the instance of the plaintiff, a Commissioner was appointed in I.A.No.22/2003 and he submitted a report that the respondent encroached upon the suit property at Survey No.714/1. It is stated that the defendant/revision petitioner filed objections to the Commissioner's report and filed an Application in I.A.No.1837/2004 for appointment of Commissioner to measure the survey No.714/1 with the help of a Taluk Surveyor and to note down the physical features and submit his report with Plan. The said Application was resisted by the respondent/plaintiff. But the trial court on an erroneous approach rejected the Application on the ground that there was no necessity for another Commissioner. Aggrieved against the said order, the present Civil Revision Petition has been filed. 5. Heard the learned counsel for the petitioner as well as the learned counsel for the respondent. I have also gone through the documents and the judgments relied on in support of their submissions. 6. It is submitted by the learned counsel for the revision petitioner/defendant that the property sought to be measured by the Commissioner is a different property than the one measured by the Commissioner appointed at the instance of the plaintiff. I have also gone through the documents and the judgments relied on in support of their submissions. 6. It is submitted by the learned counsel for the revision petitioner/defendant that the property sought to be measured by the Commissioner is a different property than the one measured by the Commissioner appointed at the instance of the plaintiff. According to the learned counsel, the previous Commissioner measured the property which is in S.F.No.715/2 and not his property situate at S.No.714/2 which is sought to be measured by the Commissioner to be appointed in his Application. He also submitted that unless this property is also measured, the alleged encroachment could not be arrived at all. Therefore it is his case that the Commissioner has to be necessarily appointed in his Application to note down the physical features of his property in S.F.No.714/1. 7. He relied on the judgment reported in 2002(2) CTC 199 (Saraswathy v. Viswanathan) and 2005 (1) CTC 105 (Muslim Middle School v. Vedavalli Ammal Trust. 8. Per contra, the learned counsel for the respondent/plaintiff submitted that seeking the appointment of second Commissioner is not necessary as the first report itself would be sufficient to decide the suit on merits. 9. It is the case of the revision petitioner/defendant that the property measuring 84 cents in survey No.714/1 was originally allotted to his father as per the partition deed and subsequently it was sub-divided during 1990 and the said land has been allotted to him. Since then he has been enjoying the property. While so, the exparte Commissioner appointed in I.A.No.22/2003 to measure the suit property had stated that there was encroachment. Whereas it is his case that unless his property, namely, S.No.714/1 is also measured, the alleged encroachment cannot be ascertained at all. Therefore, he sought for the appointment of a Commissioner to measure S.No.714/1 with the help of a Taluk Surveyor to note down the physical features and to submit his report. On the objections raised by the respondent/plaintiff, the trial court by an order dated 5.11.2004 dismissed the Application on the ground that the appointment of Commissioner sought for a second time is wrong and cannot be entertained at this stage. 10. I am of the view that the appointment of Commissioner sought for by the defendant/revision petitioner is only to note down the physical features of his property. 10. I am of the view that the appointment of Commissioner sought for by the defendant/revision petitioner is only to note down the physical features of his property. The object of appointment of Commissioner is not to collect evidence but elucidate matters which are local in character and which can be done only by local investigation at the spot. Certainly the Commissioner's report cannot decide the dispute but it could only help the court for deciding the issue. No prejudice would be caused to the respondent/plaintiff by appointing the very same Commissioner to note down the physical features. Even though the trial court has observed that the physical features of the Revision Petitioner's property in Survey No.714/1 were also noted down by the Commissioner on the earlier occasion, from the Commissioner's report, (copy of which was filed before this court) I am not able to see the physical features of the property belonged to the revision petitioner, namely, S.F.No.714/1. It is true that another advocate commissioner can be appointed by court only if the report submitted by the previous commissioner is scrapped. But the very same commissioner can be directed to inspect the property to file a supplementary report. Therefore, the objections raised by the respondent/plaintiff and the conclusion arrived at by the trial court on that basis cannot be legally sustained. 11. Therefore the order of the trial court is set aside and the trial court is directed to re-direct the very same Commissioner, appointed by the court below on the earlier occasion, by issuing a warrant to have the measurement of the property in S.No.714/1 which has been in possession and enjoyment of the revision petitioner/defendant with the help of a taluk surveyor so that the issue involved in the suit could be decided effectively. 12. With the above direction, this Civil Revision Petition is allowed. No costs. C.M.P.No.3455/2005 is closed.