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2009 DIGILAW 295 (MAD)

R. Rajan v. Tamil Nadu Electricity Board

2009-01-23

G.RAJASURIA

body2009
Judgment :- Animadverting upon the order dated 03.08.2007 passed by the learned District Munsif,Kothagiri in I.A.No.258 of 2007 in O.S.No.220 of 2006, this civil revision petition is focussed. 2. Heard the learned Senior counsel for the petitioner as well as the learned Additional Advocate General appearing for the respondent. 3. A summarization and summation of the relevant facts, as stood exposited from the records could succinctly and precisely be set out thus: The revision petitioner/plaintiff herein filed the suit in O.S.No.220 of 2006 seeking the following relief: - granting a permanent injunction restraining the defendant, their subordinates, their workmen, contractors, agents, servants or any one claiming through them from disturbing the plaintiffs peaceful possession and enjoyment of the suit schedule property by way of trespassing into the suit schedule property or in any other manner by causing damages to the tea plants or uprooting the tea plants and putting up construction or structure in the suit schedule property. Earlier the plaintiff got an Advocate Commissioner appointed to measure the suit property concerned. Accordingly, the Commissioner visited the suit property and measured it and submitted his report. Subsequently, I.A.No.258 of 2007 was filed by the plaintiff seeking the following relief: - to appoint an Advocate Commissioner to visit the suit schedule property with the help of qualified surveyor and F.M.B.sketch and revenue records to ascertain whether the 1.00 acre of property allegedly claimed by respondent/defendant under the guise of false sale deed dated 21.02.2006, D.No.219/2006 (S.R.O.Kotagiri) lies within the suit schedule property belonging to petitioner/plaintiff and to ascertain the actual boundaries of the said 1.00 acres of property on ground and to file detailed report with sketch. The trial Court appointed the Advocate Commissioner also with the following direction: "The report of the Advocate Commissioner is ordered to be scrapped and the Commissioner warrant is ordered to be reissued to the same Advocate Commissioner Mr. P. Kuilarasan. He is directed to give due notice to both parties and reinspect and locate the property of 4.10 acres in S.No.71/2 as per the four boundaries found in Page No.14 of the sale deed of the petitioner/plaintiff dated 4. P. Kuilarasan. He is directed to give due notice to both parties and reinspect and locate the property of 4.10 acres in S.No.71/2 as per the four boundaries found in Page No.14 of the sale deed of the petitioner/plaintiff dated 4. 2005 and also the property found in the sale deed of the respondent/defendant in 219/06 dated 21.02.2006 and the entire extent of 13.01 acre in S.No.71/2 and locate the above two said properties, by measuring them with the help of qualified surveyor and submit report along with plan on or before 17.08.2007." Being aggrieved by and dissatisfied with the said order, this revision is focussed on various grounds. 4. The learned senior counsel for the revision petitioner/plaintiff, placing reliance on the grounds of revision, would develop his argument to the effect that the lower court was not justified in directing the Commissioner to measure the suit properties with reference to the boundaries referred to in the sale deed, which emerged in favour of the plaintiff as it is the specific case of the petitioner/plaintiff that error had crept in, in specifying the boundaries in the sale deed and that only the map contains the proper location of the plaintiffs property; the lower court also was not justified in scrapping the earlier report and sketch produced by the Commissioner based on the survey map. 5. Whereas the learned Additional Advocate General would submit that absolutely there is nothing wrong on the part of the lower Court in directing the Commissioner to measure the suit property with reference to the documents and if the details are available before the Court, then only it would enable the lower court to appreciate the facts. 6. What I could understand from the submission made before me as well as the records is that, the contention of the plaintiff is that they are entitled to a larger extent of the land and that got reflected in the map, whereas error crept in, while specifying the boundaries in the sale deed, which was executed in their favour by their vendor and in such a case, the finding of the lower court that the earlier Commissioner report based on the map to be scrapped would cause injustice to the petitioner. 7. 7. When all said and done, considering the pro et contra, in this factual matrix, I am of the considered opinion that the lower Court could have very well refrained from scrapping the earlier Commissioners report, The lower court was under the misconception that unless the earlier report was scrapped, it would have no jurisdiction to issue afresh Commissioner Warrant to the Commissioner to revisit the suit property and measure it and submit report. Ordering for revisit so as to gather further particulars is different from afresh commission being issued and that distinction has not been taken note of by the lower court. It is for the lower Court to decide as to whether the boundaries as found detailed and delineated in the sale deed, which emerged in favour of the plaintiff should prevail over the boundaries as set out in the map concerned. The lower Court could have refrained from giving a finding in the order passed in I.A.258 of 2007 that the earlier Commissioner committed a gross mistake in measuring the property with reference to the map etc., and he ought to have measured only with regard to the document of title. 8. Hence, in these circumstances, the aforesaid findings of the lower Court alone shall stand expunged and the same Commissioner as directed by the lower Court shall carry out the mission and submit his report. As such the trial Court is bound to consider the earlier report and the sketch as well the subsequent report and the sketch that would be placed before the Court by the Commissioner. 9. With the above observation, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.