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2012 DIGILAW 3337 (MAD)

R. Balu v. Arulmighu Sakthi Vinayagar Temple

2012-07-27

K.RAVICHANDRA BAABU

body2012
Judgment :- 1. This Civil Revision Petition is filed against an order made in I.A.No.40 of 2009 in A.S.No.47 of 2005, on the file of Principal Sub Court, Erode, wherein and whereby, the application filed by the petitioner, seeking for rejection of Commissioner's Report and plan submitted by him, was dismissed, by an order dated 29.01.2009. 2. The petitioner herein is the defendant in a suit filed by the respondent-temple in O.S.No.503 of 2002, on the file of District Munsif Court, Erode, seeking for declaration of the title to the suit property and for recovery of possession. The said suit was contested by the petitioner herein, as the defendant and the trial Court, after considering various aspects of the matter, dismissed the suit, by a judgment and decree dated 28.01.2004. Aggrieved against the same, the respondent-temple filed an appeal before the lower appellate Court. The case of the temple before the Courts below is that the suit property lies within the poromboke and the suit survey number, viz., T.S.No.108, stands in the name of the temple. But, on the other hand, it is the contention of the petitioner / defendant that the suit property does not belong to the temple and it belongs to the defendant. Though the trial Court has dismissed the suit, now the matter is pending before the first appellate Court, by way of an appeal filed by the temple and as such, the first appellate Court has to decide the matter on merits, based on the rival contentions of the parties as well as finding rendered by the trial Court. During the pendency of the appeal, the appellant before the lower appellate Court, viz., the temple filed an application seeking for appointment of Commissioner for noting down the physical features of the suit property. In the said application, an order came to be passed on 20.02.2007, whereby, the lower appellate Court appointed an Advocate Commissioner and directed him to note down the physical features and to take down the measurements with the help of Surveyor and to submit the report with scale plan, as to whether the suit property at Door No.49 is located in T.S.No.108 at Erode Town. Based on the said order passed by the lower appellate Court, the Advocate Commissioner inspected the suit properties and prepared a plan with the help of Surveyor and has submitted the same with his report before the Court. The petitioner herein objected the said report filed by the Advocate Commissioner, as well as the plan prepared by him, by contending that the shop No.49 is situated in T.S.No.106, which the Commissioner failed to disclose in his report. Therefore, by taking such objection, the petitioner herein filed the above I.A.No.40 of 2009, seeking for rejecting the report and plan filed by the Advocate Commissioner. The said application filed by the petitioner was opposed by the respondent-temple, by filing a counter affidavit. The Court below, after considering the submissions made by the respective parties, as well as their pleadings, has found that the Commissioner has filed a report, by stating that Shop No.49 is also within the Survey No.108 and as the Commissioner has only executed the warrant issued by the Court, as per directions given therein, there is no necessity for rejecting the said report. Accordingly, the application filed by the petitioner was dismissed. 3. Heard Mr.G.Karthikeyan, learned counsel appearing for the petitioner and Mr.T.Muruga Manickkam, learned counsel appearing for the respondent-temple. 4. Mr.G.Karthikeyan, learned counsel appearing for the petitioner contended that the Shop No.49 is not located at Survey No.108 alone and on the other hand, it is also situated at T.S.No.106, which the Commissioner failed to note down. Moreover, the learned counsel has also argued that the Commissioner has given a finding in the report as if there are encroachments at T.S.No.108. According to the learned counsel, the said finding of the Commissioner is unwarranted and he has no power to say, whether the property in dispute is an encroachment or not. Therefore, the learned counsel for the petitioner contended that the report submitted by the Commissioner cannot be taken into consideration by the Court below and consequently the same has to be rejected. 5. Per contra, the learned counsel appearing for the respondent-temple contended that the Commissioner was appointed only for noting down the physical features, as per the direction of the lower appellate Court and any objection raised by the petitioner will have to be considered by the Court below, only at the time of final disposal of the appeal. 6. 5. Per contra, the learned counsel appearing for the respondent-temple contended that the Commissioner was appointed only for noting down the physical features, as per the direction of the lower appellate Court and any objection raised by the petitioner will have to be considered by the Court below, only at the time of final disposal of the appeal. 6. It is seen that the Commissioner was appointed by the lower appellate Court for noting down the physical features and to take measurement with the help of Surveyors and to submit the report with scale plan and to say, as to whether the suit property at Door No.49 is located in T.S.No.108, at Erode Town or not. Accordingly, the Commissioner inspected the suit property and prepared a plan with the help of Surveyor and consequently, filed report with plan before the Court below. The said report filed by the Commissioner is objected by the petitioner, by saying that the suit property is not lying within the Survey No.108 alone, but also lies at Survey No.106. As the role of the Commissioner is only to file a report along with the plan, as directed by the Court below, it is for the lower appellate Court to consider the said report along with objection raised by the petitioner and decide the matter on merits and in accordance with law, at the time of hearing the appeal. It is needless to say, that the Commissioner's Report cannot be taken as a conclusive proof without reference to the objections made against the same, which exercise the lower appellate Court would do at the time of hearing of the appeal. Under such circumstances, I find no illegality or infirmity in the order passed by the Court below in rejecting the petitioner's application. 7. Hence, the Civil Revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.