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2012 DIGILAW 3387 (MAD)

S. Gnanaprakasam, Neyveli v. Lazer, Panruti Taluk

2012-07-31

V.DHANAPALAN

body2012
Judgment :- 1. This Civil Revision Petition has been filed against an order of the learned District Munsif, Panruti, passed in I.A. No: 461 of 2011 in O.S. No: 123 of 2008 dated 19.10.2011. 2. The revision petitioner is the plaintiff and the respondent is the defendant. The suit is one for declaration of title and recovery of possession. The defendant has filed his written statement. After framing issues, the suit was posted for trial on 13.07.2009 and subsequent to that on various dates and finally it was posted on 08.01.2011. In the meanwhile, the respondent defendant has filed an application in I.A. No: 124 of 2011 and being a senior citizen he prayed for an early hearing of the matter. Therefore, that application was allowed by the trial Court an the matter has been posted for trial on 01.06.2011, 08.06.2011, 15.06.2011, 24.06.2011 and on 02.08.2011. At that stage, the revision petitioner has filed a petition under Order 26 Rule 9 read with Section 151 C.P.C. for appointment of an Advocate Commissioner to visit the suit property and find out the physical features and to draw a sketch. 3. The trial Court, on consideration of the fact that the defendant being a senior citizen sought for early disposal of the case and taking note of the various adjournments, held that the appointment of advocate commissioner as sought for by the revision petitioner is not going to help the plaintiff in any way as the report of the advocate commissioner is only a secondary evidence and that it is for the revision petitioner, being the plaintiff, to prove his case. As against such rejection of the I.A. filed by him, the plaintiff is before this Court in this revision. 4. Heard Mr. R. Sunil Kumar learned counsel appearing for the petitioner. He consistently pleaded that the existence of the exact number of trees in the suit schedule property cannot be proved on evidence either oral or documentary and therefore, it is necessary to appoint an Advocate Commissioner to find out the physical features and to draw a sketch. He submits that such a claim of the revision petitioner had not been looked into by the trial Court in the light of the provisions under Order 29 Rule 9 C.P.C. 5. Admittedly, the petitioner is the plaintiff in the suit filed for a declaration of title and for recovery of possession. He submits that such a claim of the revision petitioner had not been looked into by the trial Court in the light of the provisions under Order 29 Rule 9 C.P.C. 5. Admittedly, the petitioner is the plaintiff in the suit filed for a declaration of title and for recovery of possession. The respondent defendant had filed his written statement. Issues were framed on 09.06.2009. Thereafter, the hearing of the suit was adjourned on various dates namely 13.07.2009, 10.08.2009, 06.11.2009, 18.02.2010, 08.06.2010, 06.08.2010, 02.11.2010 and on 08.01.2011. In the meantime, the respondent defendant, claiming that he is a senior citizen, filed I.A. No: 124 of 2011 seeking early disposal of the suit. That application was allowed on 25.03.2011 after hearing both the parties. Thereafter, the suit was listed for trial on 01.06.2011, 08.06.2011, 15.06.2011, 24.06.2011 and on 02.08.2011. On 02.08.2011, the revision petitioner filed an interlocutory application in I.A. No: 461 of 2011 seeking appointment of an advocate commissioner under Order 26 Rule 9 read with Section 151 C.P.C. 6. The learned trial Judge, on consideration of the entire facts, held that in a suit for declaration of title and recovery of possession it is for the plaintiff to prove his case by letting in oral and documentary evidence and even if an advocate commissioner is appointed, the report of the advocate commissioner can come to the rescue of the plaintiff only as a secondary evidence. The trial Court further held that when the issue to be decided in the suit is about the right of the parties in the land in question viz. 0.10 cents, the report of the advocate commissioner about the standing trees in that land will not help the trial in any way. Accordingly, the trial Court dismissed the interlocutory application filed by the plaintiff. 7. Law is well settled that when a suit is filed by the plaintiff for a declaration of title and for recovery of possession, when the rights of the parties are to be decided, it is for the plaintiff to prove his case by letting in oral and documentary evidence independently and any kind of report of the Advocate Commissioner will not be of any help in a matter of this nature and the trial Court has correctly come to such a conclusion while rejecting the interlocutory application. In the light of the above principle, I see no reason to interfere with the finding rendered by the trial Court. Accordingly, the Civil Revision Petition deserves no merits and the same is dismissed. There shall be no orders as to the costs. However, the revision petitioner is at liberty to contest the matter before the trial Court in a manner known to law by letting in oral and documentary evidence.