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2009 DIGILAW 225 (MAD)

K. Subramaniam v. R. K. Angappan

2009-01-21

G.RAJASURIA

body2009
Judgment :- Anim-adverting upon the order dated 19. 2007 passed in I.A.No.1078 of 2007 in O.S.NO.18 of 1998 by the District Munsif Court, Tiruchengode, this revision petition is filed. 2. The facts giving rise to the filing of this revision petition, as stood exposited from the plaint, could succinctly and precisely, pithily and briefly be set out thus: The respondent/plaintiff filed the suit O.S.No.18 of 1998 claiming right over a wall. During the pendency of the suit, he got the Commissioner appointed, who also visited the suit property and submitted his report. However, the respondent/plaintiff has not filed any objection to the Commissioners report, whereas the petitioner/defendant filed objections. The trial was conducted and the matter also was posted for judgment. At that time, the plaintiff filed I.A.NO.1076 of 2005 for reissuing the Commission warrant to the Commissioner with a mission to measure the properties of both the parties and locate the suit wall and file the report with sketch. The trial Court allowed the same. Being aggrieved by and dissatisfied with the said order, this revision petition has been focussed on various grounds. 3. The learned counsel for the respondent/plaintiff would submit that the disputed wall is situated between the property of the plaintiff and the defendant and according to the plaintiff, the suit wall is within the plaintiffs boundary; in such a case, it is just and necessary to measure the properties of both the parties and locate as in whose boundary or area the disputed wall is situated. 4. A bare perusal of the judgment of the lower Court and the records would clearly demonstrate that earlier the Commissioner visited the suit property and submitted his report. Whereupon the defendant filed the objection, but the plaintiff has not filed any objection. In such a case, after the matter was posted for judgment, I could see no rhyme or reason on the part of the plaintiff in filing such an application for directing the Commissioner to revisit the suit property, so as to find out in whose property actually the suit wall situates. The lower Court is having before it the Commissioners report and the sketch and also the oral and documentary evidence. The lower Court is having before it the Commissioners report and the sketch and also the oral and documentary evidence. At the fag end of the suit, it is not open for the plaintiff to seek for a direction to find out which is the suit wall, out of the alleged two walls standing side by side. With reference to the documents, plan and Commissioners report, it is for the Court to arrive at a conclusion. Without setting aside the earlier report of the Commissioner, a fresh Commission warrant could not also be issued and to that effect there are catena of decisions. The plaintiff cannot be allowed to take the help of the Court to make a broad based rowing enquiry, by getting appointed a Commissioner to locate and find out as to what actually is the suit wall. The plaintiff has to come forward with a specific case that the entire wall belongs to him and in such a case it is for the Court to decide from the available evidence. Put simply the approach of the lower Court is far from satisfactory. Accordingly, the order dated 19. 2007 passed in I.A.NO.1078 of 2007 is set aside. The trial Court is directed to proceed with the matter with the available evidence and record. 5. In the result, the revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.