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2013 DIGILAW 997 (MAD)

Marappa Gounder v. Appusamy

2013-02-18

M.VENUGOPAL

body2013
Judgment 1. The Petitioners/Defendants have filed the present Civil Revision Petition as against the order dated 21.02.2011 in I.A.No.1604 of 2010 in O.S.No.301 of 2010 passed by the Learned District Munsif, Sankari. 2. The Learned District Munsif, Sankari, while passing orders in I.A.No.1604 of 2010 in O.S.No.301 of 2010 in Paragraph 8 has observed that 'since it is the contention raised by the Respondents (Defendants/Revision Petitioners) that the suit cart track is meant only for the use of joint family properties and it is not open to the Petitioner (Respondent/Plaintiff/Petitioner) to transport anything from S.No.202/2C through the suit cart track, there is nothing wrong in directing the Advocate Commissioner to note down the physical features of S.No.202/2C also, which is connected with the disputed suit cart track' and resultantly, allowed the application by appointing Thiru. N. Chandaran, Advocate Commissioner and directed him to visit the suit property as well as S.No.202/2C, after issuance of notice to both the parties, note down the existing physical features and to file his Report along with a rough sketch by 05.04.2011. 3. Also, the remuneration for the Advocate Commissioner has been at Rs.1,500/- to be paid by the Respondent (Petitioner/Plaintiff), directly to the Commissioner and further directed the application to be called on 05.04.2011. 4. It transpires that the Revision Petitioners/Petitioners (Defendants) have filed CRP.PD.No.1190 of 2011, being dissatisfied with the order of appointment of Advocate Commissioner made by the trial Court in I.A.No.1604 of 2010 in O.S.No.301 of 2010 on 21.02.2011 and this Court, in M.P.No.1 of 2011 has passed the following order: “Notice of motion returnable in four weeks. Private Notice is also permitted. Interim stay till then.” 5. The Learned Counsel for the Petitioners/Defendants contends that the trial Court has committed an error in allowing the I.A.No.1604 of 2010 in O.S.No.301 of 2010 on 21.02.2011, by appointing an Advocate Commissioner without properly considering the factual and attendant circumstances of the case in a proper and real perspective. 6. According to the Learned Counsel for the Petitioners/Defendants, the trial Court has failed to appreciate an important fact that the suit cart track ABCDE is available only for the joint family properties, which are divided between the Plaintiff and the First Defendant. Furthermore, the crystal clear stand taken by the Petitioners/ Defendants is that the Respondent/Plaintiff has no right to use the cart track in respect of the land in S.No.202/2C. 7. Furthermore, the crystal clear stand taken by the Petitioners/ Defendants is that the Respondent/Plaintiff has no right to use the cart track in respect of the land in S.No.202/2C. 7. Yet another plea taken on behalf of the Petitioners/Defendants is that the land in S.No.202/2C has been purchased by the Respondent/Plaintiff's son and subsequently, it has been settled in favour of the Respondent/Plaintiff. Indeed, the said purchase is a separate land and therefore, the suit cart track cannot be utilised for any purpose of the suit land in S.No.202/2C. 8. Lastly, it is the submission of the Learned Counsel for the Petitioners/Defendants that it is for the Respondent/Plaintiff to prove his right in respect of the cart track by way of independent evidence and it is not open to the Respondent/Plaintiff to indulge in either fishing expedition or to such for an evidence or to gather or collect evidence, besides the land in S.No.202/2C is not a subject matter of 'Lis' between the parties. 9. Per contra, it is the contention of the Learned Counsel for the Respondent/Plaintiff that because of the adamant attitude of the Revision Petitioners/Defendants, the agricultural products are likely to be wasted in which event he will be serious hardship and loss and as a matter of fact, the Respondent/Plaintiff has got every right to use the suit cart track for all the purposes and more importantly, there is no alternative way to him except the suit cart track. 10. The Learned counsel for the Respondent/Plaintiff brings it to the notice of this Court that the Petitioners/Defendants had denied the Respondent/Plaintiff's right of way in the suit cart track and that the Respondent/Plaintiff in the main suit has sought the relief of declaration of his right in the suit cart track and for permanent injunction. 11. At this stage, a scrutiny of the Plaint prayer made by the Respondent/Plaintiff points out that the Respondent/Plaintiff has sought the relief of declaration and he and the Defendants are having right in the ABCDE cart track and also, sought a relief of permanent injunction restraining the defendants (Revision Petitioners), their men, servants and agents, from in any way and in any manner, preventing with the Respondent/Plaintiff's usage in the suit ABCDE cart track, by taking men, cattle and bullock carts. 12. 12. The Respondent/Plaintiff in I.A.No.1604 of 2010 filed by him as Petitioner in Paragraph 8 has stated as hereunder: "I submit that on 15.10.2010 at about 3.00 P.M., when I harvesting portion of sugar cane crops in my lands in S.No.202/2C, and take the sugar cane crops across the C-D portion of the cart track, the defendants and their men were obstructed me to use the same. I was managing to pass through the cart track with the help of my well wishers and neighbours. While so, again on 25.11.2010 when I have cutting the portion of sugar cane crops in S.No.202/2C and attempting cross the C-D portion with the harvested sugar cane crops; the defendants were virtually prevented me to pass through the C-D portion of the suit cart track. At the time the defendants and their men openly challenged that they will not allow me in using the C-D portion of the suit cart track. Further, the defendants proclaimed that at any cost they will obstruct or even obliterate in order to prevent me from using the C-D portion of the suit cart track. The defendants have no right to prevent me from using the suit cart track. In fact the sugar cane crops raised in S.No.202/2C already grown up and the same has to be cut and transport to the factory. Because of the adamant attitude of the defendants, the agricultural products are likely to be wasted and in such circumstances, I will be put into heavy loss. I have got every right to use the suit cart track for all my purposes. In fact there is no alternate way to me, except the suit cart track. Since the defendants are denied my right of way in the suit cart track, I am seeking the relief of declaration of my right in the suit cart track and for permanent injunction." 13. A detailed counter has been filed by the First Revision Petitioner/First Respondent/First defendant (adopted by the Second Respondent) wherein it is specifically denied that 'It is false to say that using the suit ABCDE common cart track to reach their respective lands and houses is more than statutory period of 33 years. A detailed counter has been filed by the First Revision Petitioner/First Respondent/First defendant (adopted by the Second Respondent) wherein it is specifically denied that 'It is false to say that using the suit ABCDE common cart track to reach their respective lands and houses is more than statutory period of 33 years. It is false to say that the suit cart track is a pakka cart track with a breadth of 6 ft and 10 ft as detailed in the rough plan and the same has been clearly mentioned in the Panchayat Muchalika. Also, in Paragraph 9 of the counter, it is once again denied and stated as hereunder: “9. ...It is false to say that the petitioner was managing to pass through the cart track with the held of his well wishers and neighbour. The S.No.202/2C is not a property purchased by Rakkiya Gounder and in no way connected with join family property. The S.No.202/2C is entirely different property of petitioner and this respondent. Hence, the petitioner is not entitled to use the cart track to take agricultural products in the suit cart track. The suit cart track is only for s.No.186/2B, 202/1 & 202/2A and not for any other survey Nos. It is false to say that again on 25.11.2010 when the petitioner is cutting the portion of sugar cane crops in S.No.202/2C and attempting cross the C-D portion with the harvested sugar cane crops; the defendants were virtually prevented the petitioner to pass through the C-D portion of the suit cart track. It is false to say that further the defendants proclaimed that at any cost they will obstruct or even obliterate in order to prevent the petitioner from using the C-D of the suit cart track." 14. That apart, in Para 10 of the counter, it is stated that this respondent never signed in Panchayat Muchalika dated 07.07.1977. This respondent suspects that the alleged panchayat muchalika, dated 07.07.1977 was forged and created by the Petitioner/Plaintiff for the purpose of the suit, etc., 15. In effect, the Revision Petitioners/Respondents in their counter to I.A.No.1604 of 2010 in O.S.No.301 of 2010 has taken a categorical pleading that both the parties are entitled to use the cart track only for the Survey Nos.186/2B, S.No.202/1 and S.No.202/2A which belongs to the joint family properties of the petitioners and respondents. 16. In effect, the Revision Petitioners/Respondents in their counter to I.A.No.1604 of 2010 in O.S.No.301 of 2010 has taken a categorical pleading that both the parties are entitled to use the cart track only for the Survey Nos.186/2B, S.No.202/1 and S.No.202/2A which belongs to the joint family properties of the petitioners and respondents. 16. The above said cart track can only used for the above said Survey Numbers and not for any other Survey Numbers. Also, another stand has been taken on behalf of the Revision Petitioners is that the Respondent is not entitled to transport any agricultural produce in Survey No.202/2C through the suit cart track, because of the fact that S.No.202/2C is in no way connected with the joint family property of S.No.186/2B, S./No.202/1 and S.No.202/2A. As a matter of fact, according to the Revision Petitioners/Defendants, S.No.202/C is separate properties of the Respondent/Plaintiff (Petitioner in I.A.No.1609 of 2010). 17. It is to be noted that an appointment of an Advocate Commissioner is to be performed by a Court of Law exercising its judicial discretion based on the facts and circumstances of a given case, which float on the surface. No wonder, the report of an Advocate Commissioner per se is not an evidence. A Court of Law can appoint an Advocate Commissioner in regard to the elucidation of any particular matter, where the controversies between the parties has arisen or arises. The Advocate Commissioner's report can be sought as an aid by a Court, inasmuch as an Advocate Commissioner is an Officer of the Court. The report of the Advocate Commissioner, in Law, is to be taken into account with rest of the available oral and documentary evidence either to be let in by the concerned parties or by the parties to the litigation as the case may be. At the time of final decision of the suit, it is open to the trial Court to look into the Commissioner's report and it is upto the trial Court either to accept the Commissioner's report or to refuse the same. The exercise of judicial discretion to make use of the Commissioner's report is within the domain of the concerned Court of Law. It cannot be gainsaid that the report of the Advocate Commissioner is not binding on the Court. The exercise of judicial discretion to make use of the Commissioner's report is within the domain of the concerned Court of Law. It cannot be gainsaid that the report of the Advocate Commissioner is not binding on the Court. Also, one cannot brush aside an important fact that even a Court of Law can examine an Advocate Commissioner, who has furnished the Report and Plan either suo motu or on behalf of any party to the litigation. 18. In the instant case on hand, the trial Court has observed that this Court is supposed to know the physical features on ground regarding the disputed properties and for that purpose, appointment of an Advocate commissioner is required and is also opined that the report of the Advocate Commissioner along with the rough sketch, the same would be useful for it to decide the Lis and the adducing of volumeness of both oral and documentary evidence. 19. In this connection, this Court significantly points out that when the Court of Law allows an application for an appointment of Advocate Commissioner, it is to be borne in mind that the concerned Court/Trial Court has not decided the 'Lis' between the parties or settled controversies between the parties once and for all. 20. Inasmuch as the Respondent/Plaintiff as Petitioners has filed I.A.No.1609 of 2010 seeking permission of the trial Court for appointment of an Advocate Commissioner to inspect the petition mentioned properties especially note down the suit ABCDE cart track, standing sugar cane crops available in S.No.202/2C and absence of the alternative cart track and other physical features etc., this Court is of the considered view that the Respondent/Plaintiff has pleaded specifically in his Plaint that there is no alternative way for him to use the cart track for all his purposes and as such, this Court, without going into merits and demerits of the matter in detail at this stage, holds that the trial Court while appointing the Advocate Commissioner in I.A.No.1609 of 2010 and allowing the same and has not committed any impropriety or illegality in allowing the said application. Per contra, the trial Court has exercised its judicial discretion in allowing the I.A.1609 of 2010 for an appointment of an Advocate Commissioner to secure the ends of Justice. Looking at from any angle, the Civil Revision Petition fails. Per contra, the trial Court has exercised its judicial discretion in allowing the I.A.1609 of 2010 for an appointment of an Advocate Commissioner to secure the ends of Justice. Looking at from any angle, the Civil Revision Petition fails. In the result, this Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Consequently, the order passed by the trial Court in I.A.No.1609 of 2010 in O.S.NO.301 of 2010 is confirmed by this Court for the reason assigned in this revision. Liberty is granted to both the parties to raise all the legal pleas before the trial Court at the time of conduct of the trial of the main suit and in the manner known to law and in accordance with law. If either of the parties or the Court at a later point of time opines that an Advocate Commissioner is to be examined to clear the mist, shroud or cloud in regard to any of the controversies in dispute between the parties, it is open to the trial Court to examine the Commissioner suo motu as a Court Witness or option is given to the parties to project an application to examine the Commissioner as a witness and the trial Court at that point of time is directed to provide adequate opportunities to the parties to cross examine the Commissioner. Consequently, the connected M.P.No.1 of 2011 is closed.