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2014 DIGILAW 4137 (MAD)

Mohammed Farook v. Kanniga

2014-11-06

P.R.SHIVAKUMAR

body2014
Judgment 1. The plaintiff in O.S.No.171/2009 pending on the file of the Principal District Munsif, Mayiladuthurai, is the petitioner in these civil revision petitions. The said suit has been filed for a mandatory injunction directing the respondent herein/defendant to remove the staircase put up by him on the compound wall claimed to be that of the petitioner herein/plaintiff within a time to be fixed by the court. 2. In the said suit, the revision petitioner herein/plaintiff filed a petition in I.A.No.110/2010 for appointment of an Advocate-Commissioner to measure the properties of the petitioner and the respondent which are adjoining, with the help of the Taluk Surveyor and submit a report in order to enable the court to arrive at the conclusion as to in whose property the compound wall lies. As a petition was not opposed and the respondent also conceded the prayer, the learned Principal District Munsif allowed the said petition and appointed Thiru.Murugavel, advocate as Commissioner to measure the properties of the petitioner and the respondent with the assistance of the Taluk Surveyor and submit a report. 3. Pursuant to the said order dated 11.03.2012, the Advocate-Commissioner caused the measurement of the properties of the petitioner as well as the respondent to be taken by the Taluk Surveyor and based on such measurements, the Advocate-Commissioner submitted his report dated 09.04.2011 along with his rough plan. Though the Taluk Surveyor was asked to assist the Advocate Commissioner in taking the measurements of the properties of the petitioner as well as the respondent, surprisingly, the Taluk Surveyor chose to submit a separate report along with a sketch prepared by him as per his measurements. 4. So far as the measurements of the adjoining properties and the suit schedule property are concerned, there is no controversy. However, the Advocate-Commissioner in his report, seems to have traded charges of non-cooperation on the part of the Taluk Surveyor, as according to the report of the Commissioner, he did not show in which portion the excess extent in the enjoyment of the respondent would fall. He had also stated in his report that in the notes of measurements given by the Taluk Surveyor failed to clearly delineate the portion in possession of the respondent herein. He had also stated in his report that in the notes of measurements given by the Taluk Surveyor failed to clearly delineate the portion in possession of the respondent herein. On the other hand, the Taluk Surveyor, besides providing a sketch showing the topography of the properties of the petitioner and the respondent along with measurements, has chosen to submit a separate report without showing in which sub division of the survey number the disputed compound wall had been put up, but at the same time incorporating a statement on the assumption that the compound wall belonged to the respondent. 5. In view of the apparent conflict between the Commissioner's report and the unwarranted report of the Taluk Surveyor, the petitioner chose to file I.A.No.146/2011 for scrapping the reports of both the Advocate-Commissioner and the Taluk Surveyor and I.A.No.147/2011 for appointment of a new Advocate-Commissioner to measure the properties of the petitioner as well as the respondent with the help of a District Surveyor and submit a report with plan. The said applications were stoutly resisted by the respondent pointing out the fact that there was no apparent discrepancy between the plans submitted by the Advocate Commissioner and the Taluk Surveyor. The learned Principal District Munsif, Mayiladuthurai, after hearing, chose to dismiss both the petitions by his orders dated 20.06.2011 that are impugned in these present revision petitions. 6. The learned counsel for the petitioner pointed out the fact that the Advocate-Commissioner has mentioned about the non-cooperation of the Taluk Surveyor and submitted that on the said ground alone, the report of the Commissioner should have been held inconclusive and hence the learned Principal District Munsif ought to have either appointed a fresh Commissioner or reissued the warrant to the Commissioner to re-visit the property and submit a fresh report with measurements with the help of the surveyor after making him follow his instructions as to what are the additional points to be noted by the Taluk Surveyor. Learned counsel for the petitioner also drew the attention of the court to that part of the report of the Advocate Commissioner, which is to the effect that the notes of measurements given by the Taluk Surveyor to the Advocate Commissioner did not show in which part the excess extent in the possession of the respondent would come. 7. Learned counsel for the petitioner also drew the attention of the court to that part of the report of the Advocate Commissioner, which is to the effect that the notes of measurements given by the Taluk Surveyor to the Advocate Commissioner did not show in which part the excess extent in the possession of the respondent would come. 7. Learned counsel for the respondent on the other hand, would point out that, despite such a charge made by the Advocate Commissioner, one can see the similarity between the plan submitted by the Advocate Commissioner and the plan submitted by the Taluk Surveyor containing lineal measurements of the portions in the possession of the petitioner and the respondent and that in the light of the of the said fact, the rejection of the prayer made by the petitioner has got to be sustained. 8. This court paid its anxious consideration to the above submissions made on both sides. 9. There cannot be any dispute over the fact that the very purpose of appointing an Advocate Commissioner to measure the properties of the petitioner and the respondent was to find out the boundary line between the properties of the petitioner and the respondent, so that the location of the disputed compound wall (whether it comes within the property of the petitioner or within the property of the respondent) can be ascertained. The Commissioner's Report reveals the absence of meeting of minds of the Advocate Commissioner and the Taluk Surveyor, which has led to the filing of a report by the Advocate Commissioner trading charges of non-cooperation on the part of the Taluk Surveyor and in retaliation, filing of a separate report by the Taluk Surveyor which contains a statement on the assumption that the disputed compound wall belongs to the respondent. 10. As rightly pointed out by the learned counsel for the petitioner, the Taluk Surveyor took upon himself the power of the court to decide the main issue involved in the suit itself. 10. As rightly pointed out by the learned counsel for the petitioner, the Taluk Surveyor took upon himself the power of the court to decide the main issue involved in the suit itself. Considering the above said aspects, the learned Principal District Munsif, Mayiladuthurai could have very well scrapped the reports of the Advocate Commissioner as well as that of the Taluk Surveyor and either re-issued the warrant to the very same Commissioner with specific directions to measure the property of the petitioner and the property of the respondent with reference to FMB and also the documents relied on by them and submit a report and plan or appointed a new Commissioner to do the same with the assistance of the Taluk Surveyor. Instead of doing it, the learned Principal District Munsif, Mayiladuthurai seems to have chosen to make unnecessary observations as if the petitioner was trying to create evidence by seeking scrapping of the report and appointment of a new Commissioner. Hence this court is of the considered view that the order of the learned Principal District Munsif, Mayiladuthurai dismissing the petitions in I.A.Nos.146/2011 and 147/2011 cannot be sustained and they are liable to be set aside. In the result, both the civil revision petitions succeed and I.A.Nos.146/2011 and 147/2011 shall stand allowed. The report of the Advocate Commissioner dated 09.04.2011 and the Taluk Surveyor dated 20.12.2010 shall stand scrapped. Commission Warrant shall be re-issued to the very same Commissioner to re-visit the properties of the petitioner and the respondent, measure the same with reference to the documents relied on by the parties and the FMBs, with the help of a Taluk Surveyor and submit a report along with a plan to be drawn by the Taluk Surveyor. The inspection shall be directed towards fixing of the location of the compound wall so that it can ascertained as to in which sub division the same lies. The additional remuneration of the Commissioner shall be fixed by the trial court on submission of the report. The expenditure shall be borne by the petitioner. However, there shall be no order as to cost in these revisions. Consequently, the connected miscellaneous petition is closed.