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2012 DIGILAW 1828 (MAD)

Dhanakodi v. Antoinett

2012-04-10

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 20.08.2009 passed by the learned Principal District Judge at Puducherry in I.A.No.82 of 2008 in A.S.No.10 of 2008 against O.S.No.515 of 2004, this civil revision petition is focussed. 2. The parties are referred to hereunder according to their litigative status and ranking before the lower Court. 3. A resume of facts absolutely necessary and germane for the disposal of this revision would run thus: The respondents/plaintiffs filed the suit for declaration of their title over the 'B' and 'C' scheduled properties and for recovery of possession. After full trial, the trial Court dismissed the suit, as against which appeal A.S.No.10 of 2008 was filed. During the pendency of the appeal, I.A.No.82 of 2008 was filed with the following prayer: "To pass an order for an appointment of an Advocate Commissioner to visit the suit properties mentioned under Schedule 'A', 'B' and 'C' along with Surveyor and with Revenue and Municipal records to find out the old name and the present new name for the locality and also the old and new boundaries with Cadastre, Re-Survey and T.S.Numbers based on the documents namely 1) Notarial sale deed dated 10.02.1939 executed by Shanmugam, S/o Arumugam in favour of Ammaniammal W/o Murugesan and 2) Notarial Donation Deed dated 28.07.1947 (Ex.A1) executed by Ammani ammal in favour of her daughter Muniammal @ Anna Marie and also to find out whether the property mentioned under 'A' schedule in the Plaint and the property mentioned in the Notarial sale deed dated 10.02.1939 and the Donation deed dated 28.07.1947 mentioned above is one and the same and file his detailed report before this Honourable Court." (extracted as such) 4. The revision petitioner filed counter also in that application. After hearing both sides, the learned trial Judge passed order, the operative portion of it would run thus: "8. ....... ...... ........the Commissioner can be directed to inspect the suit property, note its physical features and draw a sketch with the help of a surveyor noting the survey numbers, Town Survey numbers and other relevant available revenue numbers. Only for this purpose so as to enable this court to get an idea regarding the identification of the suit property and survey number, the request of the petitioner can be accepted. Commissioner can be appointed even at the appeal stage. Hence, the request of the petitioner is accepted as indicated above." 5. Only for this purpose so as to enable this court to get an idea regarding the identification of the suit property and survey number, the request of the petitioner can be accepted. Commissioner can be appointed even at the appeal stage. Hence, the request of the petitioner is accepted as indicated above." 5. Being aggrieved by and dissatisfied with the same, this revision has been focussed on various grounds. 6. The learned counsel for the revision petitioner/D1 would put forth and set forth his arguments to the effect that absolutely there was no valid reason for appointing an Advocate Commissioner at the appellate stage. The plaintiffs should have, if at all they thought fit, filed an application for getting the Commissioner appointed, when the suit was before the lower Court. By way of filling up the lacuna, the respondents/plaintiffs were not justified in filing this application at the appellate stage. The learned appellate Judge committed error in allowing such an application. The plaintiffs cannot try to fish out evidence and try to achieve success in the appeal. 7. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the revision petitioner/D1, the learned counsel for the respondents/plaintiffs would pilot his arguments, the gist and kernel of them would run thus: The appellate Court for the purpose of rendering justice in an objective manner ordered appointment of an Advocate Commissioner. The trial Court while dismissing the suit pointed out that there is doubt about the identity of the suit property. According to the trial Court, Ex.A1 could not be correlated to the property described in the schedule of the plaint; wherefore the appellants thought fit to get an Advocate Commissioner appointed by the appellate Court for getting necessary objective facts before the Court for rendering justice, with which no exception could be taken in revision. 8. The point for consideration is as to whether there is any perversity or illegality in the order appointing an Advocate Commissioner at the appellate stage as set out supra by the appellate Court and whether such appointment would amount to fill up the lacuna? 9. 8. The point for consideration is as to whether there is any perversity or illegality in the order appointing an Advocate Commissioner at the appellate stage as set out supra by the appellate Court and whether such appointment would amount to fill up the lacuna? 9. Ex facie and prime facie it is clear that the trial Court dismissed the suit on the main ground that Ex.A1 was not correlated to the suit property; whereupon the plaintiffs as appellants during the pendency of the appeal, thought fit to get an Advocate Commissioner appointed so as to place the objective facts before the Court. I do not think that such an endeavour on the part of the plaintiffs could be termed or labelled as one for purpose of filling up the lacuna. A suit for declaration of title and recovery of possession is a comprehensive one and in that the plaintiffs have to prove their case. Here the plaintiffs approached the Court with a specific case based on Ex.A1. If the Advocate Commissioner goes to the spot with the assistance of a Surveyor and also with map, he could easily locate the property with reference to the document Ex.A1 and report the full facts to the Court. In my considered opinion, even the appellate Court has not given direction that the property has to be located with reference to the document. Simply because the plaintiffs failed to adduce proper evidence before the lower Court, that it does not mean that once and for all they should be deprived of their opportunity to prove their case and that too in a case of this nature where title is involved. The burden of proof is on the plaintiffs to demonstrate and establish that the property described in Ex.A1 and the property described in the schedule of the plaint are one and the same and I am of that view that there could be no wrong on the part of the Court in directing the Advocate Commissioner to locate the property with reference to the document Ex.A1 also, so that both sides would be able to understand the real position instead of litigating on mere words and expressions. 10. The learned counsel for the petitioner would cite the decision of this Court reported in 2009-5-L.W.-809 [The Principal, St.Patrick School and College, Crescent Road, Gandhi Nagar, Adayar, Chennai 20 v. Mrs.Amaravathi (deceased) and others. 10. The learned counsel for the petitioner would cite the decision of this Court reported in 2009-5-L.W.-809 [The Principal, St.Patrick School and College, Crescent Road, Gandhi Nagar, Adayar, Chennai 20 v. Mrs.Amaravathi (deceased) and others. I am of the view that in the said judgment, the Court looked askance at the dilatory tactics of the petitioner and held that he cannot try to protract the proceedings. In the cited precedent the suit involved was one for permanent injunction so as to restrain the defendants from interfering with the peaceful possession and enjoyment of the suit property. In that factual matrix, the said precedent emerged. Here the suit filed by the plaintiffs was one for declaration of title and for recovery of possession and such a suit could rightly be termed as a comprehensive one and that too the prayers are based on Ex.A1 the title deed. The trial Court expressed doubt about the identity of the property. In such a case, in the interest of justice, the first appellate Court correctly directed appointment of an Advocate Commissioner to visit the suit property with the mission as set out supra. In addition to that, I would also, in the interest of justice, observe that the Advocate Commissioner shall locate the property with reference to Ex.A1-the title deed filed by the plaintiffs so that the true facts will be before the Court. Accordingly, I am of the view that absolutely there is no merit in the revision petition and the same shall stand dismissed. No costs. Consequently, connected miscellaneous petition is closed.