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2017 DIGILAW 2886 (MAD)

K. Suresh Nepoleon v. D. Mohan

2017-08-28

T.RAVINDRAN

body2017
ORDER : This civil revision petition filed at the instance of the petitioner/defendant is directed against the fair and decreetal orders, dated 29.09.2016, passed in I.A.No.580 of 2016 in I.A.No.1012 of 2012 in O.S.No.442 of 2010, on the file of the Additional District Munsif Court, Srivilliputtur. 2. The suit in O.S.No.442 of 2010 has been laid by the respondents/plaintiffs against the petitioner/defendant for declaration, possession and mandatory injunction. It is found that the said suit is being resisted by the petitioner/defendant by filing a written statement. While so, the respondents/plaintiffs preferred an application in I.A.No.1012 of 2012, under Order XXVI Rules 9 and 10 of the Code of Civil Procedure, seeking for the appointment of a Commission to make inspection of the suit property with the help of a Surveyor so as to point out/identify the encroachments made in the suit property by the petitioner/defendant and the compound wall put up by the petitioner/defendant by way of such encroachments by submitting a report and plan. It is found that the said application was not contested by the petitioner/defendant and he having made an endorsement as no counter, it is found that the Court below was pleased to appoint an Advocate Commissioner directing him to inspect the suit property with the help of the Surveyor and file his report and plan. Pursuant to the same, the Commissioner, who had been so appointed, is found to have inspected the suit property and filed his report and plan. It is, further, found that the respondents/plaintiffs have put forth certain objections to the report and plan of the Advocate Commissioner. 3. As seen from the provisions of Order XXVI Rule 9 C.P.C., it is found that the Commissioner should make inspection of the suit property only touching upon the features of the suit property as may be directed by the Court in the warrant issued to him. 3. As seen from the provisions of Order XXVI Rule 9 C.P.C., it is found that the Commissioner should make inspection of the suit property only touching upon the features of the suit property as may be directed by the Court in the warrant issued to him. Now, according to the respondents/plaintiffs, inasmuch as the Commissioner had not noted the encroachments made by the petitioner/defendant in the suit property in his plan and also not clearly demarcated the first and second schedules of the suit property in his plan and further, as the report of the Commissioner and the plan are found to be inconsistent with each other with reference to the demarcation of the above schedule properties and further, according to the respondents/plaintiffs, the Commissioner though had been requested by them to measure the property of the petitioner/defendant, but the same had been refused by the Commissioner and so pointing out the above said objections put forth by them, it is found that the respondents/plaintiffs preferred another application in I.A.No.580 of 2016 seeking for the scrapping of the report filed by the Advocate Commissioner pursuant to the orders passed by the Court below in I.A.No.1012 of 2012 and further seeking for the appointment of a new Commissioner to inspect the suit property with the help of the Surveyor and in particular, to measure the suit property with the help of the title deeds of the petitioner/defendant and file his report and plan for the proper adjudication of the issues involved in the matter. The said application was seriously resisted by the petitioner/defendant putting forth that there is no specific direction sought for by the respondents/plaintiffs to measure the suit property with the assistance of the title deeds of the petitioner/defendant in I.A.No.1012 of 2012 and in continuation thereof, as there was no direction of the Court also to perform the said task in the warrant issued to the Commissioner, the respondents/plaintiffs cannot find fault with the report of the Commissioner as if he had failed to measure the suit property vis-a-vis the title deeds of the petitioner/defendant and further, according to the petitioner/defendant, no such instruction is given by the respondents/plaintiffs to the Commissioner and further according to him, even if the Commissioner had refused to comply with the request of the respondents/plaintiffs, nothing prevented them from pointing out the same to the Court and getting such other or further direction from the Court to the Commissioner to complete the said task as requested by them. Further, as regards the plea put forth by the respondents/plaintiffs that the Commissioner has not noted the encroachments made by the petitioner/defendant in the suit property, it is stated that it has been all along the specific case of the petitioner/defendant that no such encroachment had been made by him as pleaded by the respondents/plaintiffs and accordingly, the Commissioner has also not referred to about the encroachments as such said to have been made by the petitioner/defendant in the report and plan and further, it is stated that the Commissioner is not a competent authority to determine the question of encroachment said to have been made by the petitioner/defendant in the suit property and it is only the Court, which is the competent authority, to settle the issue of encroachment on the basis of the materials placed by the respective parties and thus, it is stated that as there was no direction from the Court to the Commissioner to measure the suit property vis-a-vis the title deeds of the petitioner/defendant and as the case of the respondents/plaintiffs that their request to measure the suit property with the help of the title deeds of the petitioner/defendant is also not made out or justified and further as the Commissioner had only filed his report and plan of the physical features of the suit property, as observed and noted by him during his inspection, according to the petitioner/defendant, there is no need for scrapping of the report filed by the Advocate Commissioner and also no need for the appointment of the new Advocate Commissioner to inspect the suit property again and measure the same with the help of the title deeds of the petitioner/defendant as prayed for by the respondents/plaintiffs. It is further contended by the petitioner/defendant that if really the respondents/plaintiffs are aggrieved by the report and plan of the Advocate Commissioner, they cannot be rest contended by merely filing objection to the same and it is for them to establish that the Commissioner has not acted in accordance with the directions issued by the Court and for that purpose, the respondents/plaintiffs should have endeavoured to examine the Commissioner with the permission of the Court as regards the report and plan filed by him and only thereafter, if the respondents/plaintiffs are able to establish to the satisfaction of the Court that the Commissioner has not performed his task properly and correctly, only then the Court would be empowered as such to pass further orders as to the further inspection of the suit property by the same Commissioner or by another Commissioner and the scrapping of the report of the Commissioner etc., and this procedure having not been followed by the respondents/plaintiffs, according to the petitioner/defendant, the application laid by the respondents/plaintiffs in I.A.No.580 of 2016 merits rejection. 4. The Court below found acceptance with the case of the respondents/plaintiffs and scrapped the report of the Commissioner and appointed another Commissioner to inspect the suit property again. Impugning the same, the present civil revision petition been preferred. 5. As rightly put forth by the learned counsel for the petitioner/defendant, in I.A.No.1012 of 2012, the respondents/plaintiffs themselves have not sought for the inspection and measurement of the suit property by the Commissioner with the help of the Surveyor vis-a-vis the title deeds of the petitioner/defendant. In such view of the matter, the objections put forth by the respondents/plaintiffs to the report and plan of the Commissioner that the Commissioner has not performed his task as directed by the Court as such cannot be accepted. When it is found that the Court below has not directed the Commissioner to inspect the suit property vis-a-vis the title deeds of the petitioner/defendant and when the same is not the prayer of the respondents/plaintiffs in I.A.No.1012 of 2012, the above objections put forth by the respondents/plaintiffs to the report and plan of the Commissioner, as rightly submitted by the learned counsel for the petitioner/defendant, cannot be sustained. 6. 6. Further, according to the respondents/plaintiffs, the Commissioner had failed to measure the suit property with the help of the title deeds of the petitioner/defendant though they had made a request to the Commissioner with reference to the same. At the foremost, it has not been established by the respondents/plaintiffs that such a request had been made by them to the Commissioner. Be that as it may, it is found that the respondents/plaintiffs have not prayed for such a relief in I.A.No.1012 of 2012. If really, according to the respondents/plaintiffs, the above said measurement of the suit property vis-a-vis the title deeds of the petitioner/defendant is essential and if really they had made a request to the Commissioner to do so and if the Commissioner had refused to comply with their demand, as rightly argued by the learned counsel for the petitioner/defendant, nothing prevented the respondents/plaintiffs from moving the Court below concerned immediately and seeking for appropriate directions from the Court below to the Commissioner so as enable him to complete that part of the task also as directed by the Court below. In conclusion, it is found that inasmuch as no such direction had been prayed for by the respondents/plaintiffs in I.A.No.1012 of 2012 and no such direction has also been given by the Court below to the Commissioner with reference to the same and further no such request has also been made by the respondents/plaintiffs to the Commissioner, it is found that the Commissioner has not endeavoured to take up the said task and in such view of the matter, the above objections put forth by the respondents/plaintiffs to the report and plan of the Commissioner cannot be countenanced. 7. The other objection put forth by the respondents/plaintiffs is that the Commissioner has not noted the encroachments made by the petitioner/defendant in the suit property. To the same, it is submitted by the learned counsel for the petitioner/defendant that only when the plea of the encroachments made by the respondents/plaintiffs is true and only if the Commissioner had noted the encroachments at the time of his inspection, the same would have been reflected in the report and plan of the Commissioner. To the same, it is submitted by the learned counsel for the petitioner/defendant that only when the plea of the encroachments made by the respondents/plaintiffs is true and only if the Commissioner had noted the encroachments at the time of his inspection, the same would have been reflected in the report and plan of the Commissioner. According to the petitioner/defendant, inasmuch as he had not made any encroachment in the suit property as put forth by the respondents/plaintiffs and accordingly the Commissioner also having not observed anything at the time of his inspection, the Commissioner has not made out any specific reference about the same in his report and plan. Further, it is submitted by the learned counsel for the petitioner/defendant that even otherwise, the Commissioner would not be the competent authority to point out the encroachments said to have been made in the suit property and it is for only the Court to decide the same based upon the materials placed by the respective parties. Therefore, the case of the petitioner/defendant that the above objection put forth by the respondents/plaintiffs also does not have any legality is also acceptable. 8. It is further stated by the respondents/plaintiffs that the report and plan of the Commissioner are found to be inconsistent with each other and the Commissioner had not clearly demarcated the first and second schedules of the suit property in a clear manner and incorrectly in the plan pointed out the second schedule of the property as BGEF and therefore, the report and plan of the Commissioner should not be accepted. However, it is stated by the petitioner/defendant that the Commissioner has submitted his report and plan based upon his inspection and physical features of the suit property during the time of his inspection and therefore, if at all the respondents/plaintiffs are aggrieved over the report and plan of the Commissioner, according to him, as provided under law, the respondents/plaintiffs are necessitated to examine the Commissioner with the permission of the Court and cull-out from him as to the mode of inspection done by him pursuant to the warrant issued and if by the examination of the Commissioner the respondents/plaintiffs are able to bring out any defect in the report and plan submitted by him, only in such circumstances, the Court would be empowered to either scrap the report of the Commissioner or appoint the same Commissioner or another Commissioner for completing the task left out and the respondents/plaintiffs without resorting to the above mode, cannot by merely filing objection seek for the scrapping of the report of the Commissioner and for the appointment of the another Commissioner to inspect the suit property for such and such purpose. In this connection, the learned counsel for the petitioner/defendant placed strong reliance upon the decisions reported in 1996 TLNJ 104 [Vemba Gounder vs. Pooncholai Gounder] and AIR 2017 Manipur 10 [Kangjam Jayanta Singh vs. Lisham Anilkumar Singh and others]. The learned counsel for the respondents, in support of his contentions, placed reliance upon the decisions reported in 2006 (2) CTC 54 [R.Sivasubramanian vs. S.Balamurugan] and 2009 (2) CTC 205 [Anna Sudha Devi vs. P.George Samuel]. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 9. In the light of the above discussions, when it is found that the objections put forth by the respondents/plaintiffs to the report and plan of the Commissioner are not prima facie acceptable as such, the only course available to the respondents/plaintiffs is to proceed with the examination of the Commissioner with the permission of the Court below and endeavour to bring out that the report and plan of the Commissioner are not sustainable both factually as well as legally and only then should call upon the Court to pass such or further orders as the Court may deem fit necessary in the circumstances of the case. In such view of the matter, it is found that the Court below has erred in accepting the objections of the respondents/plaintiffs to the report and plan as gospel truth and without any discussion as to whether such objections are legally sustainable or not and in particular, without at all considering the resistance put forth by the petitioner/defendant in the counter and particularly, failing to note whether at all it had issued directions to the Commissioner to inspect the suit property with the help of the title deeds of the petitioner/defendant and whether in fact the respondents/plaintiffs had requested the Commissioner to measure the suit property with the help of the title deeds of the petitioner/defendant and whether the Commissioner has erred in not noting down the encroachments as pleaded by the respondents/plaintiffs, the Court below having straightaway accepted the objections of the respondents/plaintiffs to the report and plan of the Commissioner without following the procedure contemplated under law as provided under Order XXVI Rules 9 and 10 C.P.C., and further as pointed out in the decisions of the above cited authorities, it is seen that the findings of the Court below that the petitioner/defendant has made encroachments in the suit property and that the Commissioner has not drawn the plan correctly and not demarcated the first and second schedules of the suit property correctly etc., cannot be accepted and sustained in any manner. Accordingly, it is found that the further orders of the Court below in scrapping the report and plan of the Commissioner and also appointing a new Commissioner to inspect the suit property with the help of the Surveyor again as requested by the respondents/plaintiffs cannot be accepted in any manner. 10. In conclusion, the fair and decreetal orders, dated 29.09.2016, passed in I.A.No.580 of 2016 in I.A.No.1012 of 2012 in O.S.No.442 of 2010, on the file of the Additional District Munsif Court, Srivilliputtur, are set aside and the Court below is directed to take the report and plan of the Commissioner filed pursuant to the orders passed in I.A.No.1012 of 2012 on record and proceed further in the matter in accordance with law as stated above. Accordingly, the civil revision petition is allowed with costs. Consequently, connected miscellaneous petition is closed.