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Madras High Court · body

2010 DIGILAW 2085 (MAD)

Karuppayee v. Palanisamy

2010-05-01

P.P.S.JANARTHANA RAJA

body2010
Judgment :- This Civil Revision Petition is filed against the fair and decretal order dated 11.11.2009 made in I.A.No.354 of 2009 in O.S.No.12 of 2007 on the file of District Munsif cum Judicial Magistrate, Kodumudi. 2. Respondents 1 to 3 are the plaintiffs. The petitioner is the first defendant. Respondents 4 to 13 are the defendants 2 to 11 in the suit. The respondents 1 to 3/plaintiffs have filed a suit in O.S.No.12 of 2007 before the District Munsif-cum-Judicial Magistrate, Kodumudi, seeking following prayer: a) Declaring that the plaintiffs are entitled to take water through the suit underground pipeline laid in R.S.Nos.585/2, 3, 6, 10, 11 to 16 and 18 of Kodumudi village washed in green colour and marked as CDEFG in the plaint plan; b) granting permanent injunction restraining defendants 1 to 7 their men and agents from any manner causing damage or interfering with the right of the plaintiffs to take water through the suit pipeline laid in R.S.Nos.585/2, 3, 6, 10, 11 to 16 and 18 of Kodumudi village maked in green colour and marked as CDEFG in the plaint plan; and c) directing the defendants 1 to 7 to pay the plaintiffs the cost of the suit. The petitioner/first defendant has filed written statement denying all the allegations stated in the plaint and contended that the suit is devoid of merits and the same has to be dismissed. Later, respondents 1 to 3/plaintiffs filed I.A.No.354 of 2009 in O.S.No.12 of 2007 seeking to appoint an Advocate Commissioner to re-visit the suit property and file a report. The petitioner/first defendant and respondents 4 to 9/defendants 2 to 7 had filed counter opposing the same. After considering the arguments advanced on either side, the trial Court allowed the application. Aggrieved by that order, the petitioner/first defendant has filed the present Civil Revision petition. 3. The learned counsel appearing for the petitioner/first defendant submitted that the trial Court erred in allowing the application filed by respondents 1 to 3 on the date of judgment without reopening the suit or scrapping the reports of the Commissioner, which were filed earlier. He further submitted that when the trial Court posted the matter on 29.9.2009 for judgment, the respondents 1 to 3/plaintiffs filed the above said I.A., which clearly shows their intention to delay the trial proceedings. He further submitted that when the trial Court posted the matter on 29.9.2009 for judgment, the respondents 1 to 3/plaintiffs filed the above said I.A., which clearly shows their intention to delay the trial proceedings. He also contended that the same Commissioner has categorically given details in his earlier reports and without scrapping the said reports, the trial court has wrongly allowed the present application. He also relied on the following judgments to support of his contention: (1) MOHAMMED THAIYUB VS. ABDUL RASHEED AND FOUR OTHERS (2008) 2 MLJ 838 ; (2) B.S.NAZIR HASSAN KHAN VS. ASWATHANARAVANA RAO AND OTHERS( AIR 2004 KARNATAKA 92); (3) K.M.A.WAHAB AND FIVE OTHERS VS. ESWARAN AND ANOTHER ( 2008 (3) CTC 597 ); (4) D.KUTTIYAPPAN AND OTHERS VS. MEENAKSHIAMMAL POLYTECHNIC UNIT OF M/S MEENAKSHIAMMAL TRUST, REP. BY ITS MANAGING TRUSTEE A.H.RADHAKRISHNAN ( 2005 (4) CTC 676 ); (5) CHANDRASEKARAN AND 6 OTHERS VS. V.DOSS NAIDU (2006 (2) Law Weekly 159); and (6)SATISH AGARWAL AND OTHERS VS. TIRATH SINGH (1996 AIHC 1761). 4. The learned counsel appearing for the respondents submitted that there are no details in the earlier Commissioners reports. There are lack of details and hence, the trial Court is correct in appointing the Commissioner for the purpose of finding out the exact nature of the underground pipeline passing through the land. Hence, the order passed by the trial Court is in accordance with law and the same has to be confirmed. He also undertakes to co-operate for disposal of the suit within the time limit fixed by the Court. 5. Heard the learned counsel on either side and perused the materials available on record. The first respondent is the first plaintiff, who is the father of respondents 2 and 3/plaintiffs 2 and 3. The land in R.S.Nos.579/7, 11, 21, 585/11, 17, 19 and 586/5, 7, 10 and 11 of Kodumudi Village are the ancestral properties of the respondents 1 to 3/plaintiffs 1 to 3. They are the absolute owners of the said property. The petitioner/1st defendant is the mother and the respondents 4 to 6/defendants 2 to 4 are her daughters. The 7th respondent is the paternal uncle of the respondents 4 to 6. The 8th respondent is the husband of the 6th respondent and 9th respondent is the husband of 5th respondent. They are the absolute owners of the said property. The petitioner/1st defendant is the mother and the respondents 4 to 6/defendants 2 to 4 are her daughters. The 7th respondent is the paternal uncle of the respondents 4 to 6. The 8th respondent is the husband of the 6th respondent and 9th respondent is the husband of 5th respondent. The petitioner and the respondents 4 to 7 own lands in R.S.Nos.585/1, 2, 4, 5, 7, 9, 10, 12, 13, 15, 16, 18 and 20 of Kodumudi Village. The respondents 10 and 11 own land in RS.No.585/3, 8 and 14 of Kodumudi Village. Apart from that the vacant land situated in RS.No.585/6 and the well therein belong to the petitioner and respondents in common. It was alleged that in the year 1980 they dug a well in RS.No.579/21. The said well yielded copious surplus water. The respondents 1 to 3/plaintiffs were having surplus water in the well in RS.No.579/21 after irrigating their lands in RS.No.579. The common well in RS.No.585/6 is not yielding copious surplus water. Both the petitioner as well as respondents are unable to irrigate their lands throughout the year, but they are able to irrigate only for three months. Taking into account of the copious surplus water in the well in RS.No.579/21, the respondents 1 to 3/plaintiffs are irrigating their lands in RS.No.585 and 586 by taking water from the well in RS.No.579/21 by laying underground pipeline from the year 1980. It is stated that the underground pipeline passes through the land in RS.No.579/21, 5797, 585/2, 3, 6, 11 to 19 and RS.No.586/5, 7, 10, 11. It was alleged by the respondents 1 to 3/plaintiffs that the said under ground pipeline passes through the lands continuously and also uninterruptedly with the knowledge of the petitioner as well as respondents 4 to 13 and their predecessors did not object at the time of the laying out the pipeline. Subsequently, there was a misunderstanding between the petitioner and respondents and also the respondents herein caused the damage to the said pipeline. Subsequently, there was a misunderstanding between the petitioner and respondents and also the respondents herein caused the damage to the said pipeline. Therefore, the respondents 1 to 3/plaintiffs filed a suit seeking declaration that the plaintiffs are entitled to take water through the suit underground pipeline laid in R.S.Nos.585/2, 3, 6, 10, 11 to 16 and 18 of Kodumudi village marked in green colour and marked as CDEFG in the plaint plan and permanent injunction restraining the defendants 1 to 7 from interfering with the right of the plaintiffs. After filing the suit, the respondents 1 to 3/plaintiffs filed I.A.No.49/2007 seeking appointment of advocate commissioner. The trial Court has passed exparte order appointing an advocate commissioner. The advocate commissioner has also filed report, but the report is not comprehensive one and also not a detailed one. Therefore, respondents 1 to 3/plaintiffs filed another application in I.A.No.190/2009 in O.S.No.12/2007 to appoint the advocate commissioner and file a report. The trial Court has allowed the I.A.No.190/2009 in O.S.No.12/2007 directing the Advocate Commissioner to file an additional report to find out whether through whose land the underground pipeline is passing and if there is pipeline, how many pipelines are there and if there are many pipelines, find out the each pipeline and also find out in which place the pipe line starts and in which place the pipeline ends and how many outlets are there. In consequence of appointment of Advocate Commissioner, Advocate Commissioner also filed an additional report. The said Advocate Commissioners report is not according to the details as required by the Court and the report is also not a comprehensive one and also Advocate Commissioner failed to note that, in which place pipeline starts and in which place pipeline ends. The trial Court has given detailed reasons in para nos.10 and 11 of the order that the Advocate Commissioners report is not having the complete details regarding the nature of the underground pipeline and therefore, it is difficult for the Court to decide the matter and to find out whether the underground pipeline passes through the defendants land and also defendants had not given permission to lay down the underground pipeline. Accordingly, the trial Court was of the view that without having the details regarding the nature of the underground pipeline, it is very difficult for the Court to decide the matter in the suit and held in para 11 as follows; TAMIL In view of the above, the trial Court has appointed the same advocate commissioner redirecting him to inspect the property and file an additional report. The finding rendered by the trial Court is based on the valid material and evidence. The trial Court has categorically held that the report filed by the advocate commissioner is not having the complete details regarding the nature of underground pipeline. Therefore, the trial Court has correctly given direction to the same advocate commissioner to file an additional report. Learned counsel appearing for the petitioner/1st defendant relied on the various judgments cited supra. Those judgments are factually different. In the case of MOHAMMED THAIYUB VS. ABDUL RASHEED AND FOUR OTHERS reported in (2008) 2 MLJ 838 , this Court has held that in the absence of any defect in earlier Commissioners reports, reissuance of a warrant to the same Commissioner or appointment of a new Commissioner is unwarranted. In the present case, the trial Court has categorically found that there is a defect in earlier report. Therefore, the case law is not helpful to the petitioner/first defendant. 6. In the case of D.KUTTIYAPPAN AND OTHERS VS. MEENAKSHIAMMAL POLYTECHNIC UNIT OF M/S MEENAKSHIAMMAL TRUST, REP. BY ITS MANAGING TRUSTEE A.H.RADHAKRISHNAN reported in ( 2005 (4) CTC 676 ), the fact is that earlier report is comprehensive covering all aspects. Therefore, the Court held that appointment of more than one Commissioner will lead to unhealthy practice of making applications till the party gets favourable order and such course cannot be allowed. So, this case law is not helpful to the petitioner/first defendant. 7. In the case of K.M.A.WAHAB AND FIVE OTHERS VS. ESWARAN AND ANOTHER reported in ( 2008 (3) CTC 597 ), this Court has held that Advocate Commissioner cannot be appointed to collect evidence to find out factum of possession and no prejudice will be caused to other side. Here the issue is different. So the said judgment is also not applicable to the facts of the present case. 8. In the case of SATISH AGARWAL AND OTHERS VS. Here the issue is different. So the said judgment is also not applicable to the facts of the present case. 8. In the case of SATISH AGARWAL AND OTHERS VS. TIRATH SINGH reported in 1996 AIHC 1761, the Calcutta High Court has held that the application for local inspection has been filed after recording evidence and no attempt was made to file the said application since filing of written statement and therefore the filing of the application was to fill up lacuna in evidence. The said judgment is also different from the facts of the present case. 9. In the case of B.S.NAZIR HASSAN KHAN VS. ASWATHANARAVANA RAO AND OTHERS reported in AIR 2004 KARNATAKA 92, the Karnataka High Court has held that when the application is filed belatedly for appointment of commissioner, the rejection of application was held to be proper, and the application, even if bona fide and genuine, have to be filed at a proper time that is before closing of plaintiffs evidence. This case law is factually different from the case on hand. 10. In the case of CHANDRASEKARAN AND 6 OTHERS Vs. V.DOSS NAIDU reported in 2006 (2) Law Weekly 159, the issue is that the revision was filed by the defendant against the order of lower court declining his application to appoint Advocate Commissioner to inspect suit property, note down physical features with plan, trees, age of the house. The said application was filed after 4 years of the filing of the suit. The trial Court dismissed the application on the ground of delay and that the Advocate Commissioner cannot be appointed to prove the long possession of the defendants and in those circumstances, this Court had taken a view that an advocate commissioner cannot be appointed to note down the existence of the house etc. Therefore, this judgment is also not helpful to the present case. 11. The scope of powers under Article 227 of the Constitution of India is considered by the Apex Court in the case of MS.CELINA COELHO PEREIRA AND OTHERS V. ULHAS MAHABALESHWAR KHOLKAR AND OTHERS reported in 2009(13) Scale 487 , wherein it has been held as follows: "32. Therefore, this judgment is also not helpful to the present case. 11. The scope of powers under Article 227 of the Constitution of India is considered by the Apex Court in the case of MS.CELINA COELHO PEREIRA AND OTHERS V. ULHAS MAHABALESHWAR KHOLKAR AND OTHERS reported in 2009(13) Scale 487 , wherein it has been held as follows: "32. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta and another, this Court held: "The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts." 33. In State through Special Cell, New Delhi V. Navjot Sandhu alias Afshan Guru and others this Court explained the power of the High Court under Article 227 thus: "Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”. 34. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”. 34. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, State of Maharashtra V. Milind & others, Rajneet Singh V. Ravi Prakash, came to be considered by this Court in the case of Shamshad Ahmad & Ors. v. Tilak Raj Bajaj, (deceased) through LRs. And others and this Court held: "Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law." After taking into consideration the principles enumerated in the above judgments, the scope of Article 227 of the Constitution of India and also the facts of the present case, I do not find any error or illegality in the order passed by the trial Court as to warrant interference. It is a question of fact. It is not a perverse order. Therefore, the order passed by the trial Court is in accordance with law and the same is hereby confirmed. 12. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.