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2007 DIGILAW 290 (MAD)

Thirumalai @ Ponnusamy v. S. Kumarasamy & Others

2007-01-24

S.ASHOK KUMAR

body2007
Judgment :- This revision has been preferred by the first defendant in the suit, as against the dismissal of the I.A.,filed by him to pass an order reissuing the Commissioners warrant to the very same Commissioner already appointed in I.A.No.555 of 2003 to measure the properties occupied by the plaintiff along with a Surveyor and to file a detailed report and sketch in to court. 2. According to the revision petitioner/first defendant, the Advocate Commissioner appointed in the earlier Application visited the suit properties and filed his report with plan. At the time of his visit, the Commissioner has measured the properties occupied by him alone and he failed to measure the properties of the plaintiff. When he requested the Commissioner to measure the same, the Commissioner refused to measure since there is no such direction in the warrant issued to him by the trial court. But the learned District Munsif, Erode dismissed the said application holding that having failed to make any objection to the earlier report and plan, the first defendant is not entitled to move the present application. 3. Learned counsel appearing for the revision petitioner submits that the physical features and the measurements of the properties of both the parties are absolutely necessary to decide the matter. Therefore the commissioner who already appointed in the earlier I.A., is to be redirected to make a revisit to the suit properties to measure the properties of both parties in order to arrive at a correct conclusion. 4. On the other hand the learned counsel for the firs respondent submits that the Advocate Commissioner already appointed has visited the properties and taken measurements with reference to FMB and survey stones and points were fixed by taking G line and F line measurement. Thus the Advocate Commissioner found the exact encroachment of 14 cents by the first defendant in the suit cart track and filed a detailed report and plan. The learned counsel also relied on the decision of this court in T.K.Krishnamurthy Vs. Thus the Advocate Commissioner found the exact encroachment of 14 cents by the first defendant in the suit cart track and filed a detailed report and plan. The learned counsel also relied on the decision of this court in T.K.Krishnamurthy Vs. Tamil Nadu Water and Drainage Board, Nilgiris, reported in 2006 (5) CTC 178 for the legal proposition that Advocate Commissioner should not be appointed to gather evidence to prove the case of the parties and the parties should prove their case by letting in legally acceptable evidence and the Commissioner should be appointed only to aid the court in evaluating the evidence to come to a just conclusion. 5. In this case admittedly the Advocate Commissioner appointed already in the earlier I.A.No.555 of 2003 has measured the extent occupied by the revision petitioner/first defendant and filed a report with a Plan. Now the revision petitioner has come forward with this I.A., to reissue the warrant to the same Advocate Commissioner to measure the extent occupied by the plaintiff with the help of a Surveyor. Though the first respondent has not made any objection to the report and plan submitted by the Commissioner, it is his case that he has requested the Advocate Commissioner at the time of visiting and measuring his portion to measure the portion occupied to the plaintiff, but the Commissioner refused to do because there is no such a direction in the warrant. Further, it is to be stated that the earlier I.A., has been taken out by the plaintiff to measure the extent occupied by the revision petitioner/first defendant and it is quite strange to state that the revision petitioner/first defendant has not filed any objection, to the said report and plan, because the extent measured is occupied by him and there is no necessity or occasion for him to dispute the measurement, when the same is measured correctly, though according to the plaintiff the extent includes the encroached portion. Therefore, it is always open to the revision petitioner/first defendant to seek for appointment of a Commissioner to measure the extent along with a Surveyor occupied by the plaintiff, particularly in a suit for declaration to remove the encroachment, which will only help the trial court to arrive at a just decision as to the encroached portion. Therefore, the decision cited supra by the learned counsel for the first respondent is distinguishable on facts. 6. Therefore, the decision cited supra by the learned counsel for the first respondent is distinguishable on facts. 6. For the reasons stated above, this revision is allowed setting aside the order dated 16. 2005 made in I.A.No. 161 of 2005 in I.A.No:555 of 2003 in O.S.No. 226 of 2003 by the learned PrlDistrict Munsif, Erode. The trial court is directed to reissue the warrant to the same Advocate Commissioner to measure the portion occupied by the plaintiff along with the help of a licensed Surveyor and to file a report and plan thereof. 7. Consequently, connected Miscellaneous Petition is closed. No costs.