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2018 DIGILAW 3439 (MAD)

Subramani v. Velumani

2018-10-03

M.S.RAMESH

body2018
ORDER : The present revision petition has been filed challenging the dismissal of the petitioner's application seeking for appointment of an Advocate Commissioner filed under Order 26 Rule 9 of the Civil Procedure Code. 2. Heard Ms. J. Prithivi, learned counsel for the petitioner and Mr. T. Dhanasekaran, learned counsel for the respondent. 3. The petitioner herein, who is the plaintiff had filed the above suit seeking for declaration of his title over the 'B' scheduled property in the suit and for mandatory injunction. 4. The petitioner herein, who had plotted out his entire extent of lands has come out with certain averments that the respondent herein, who has also purchased a portion of the property, is attempting to encroach on the properties comprised in Schedule 'B' and Schedule 'C' of the suit properties. The respondent herein has come out with a specific case that his boundaries prevails over the extent of the land and it is the case of the petitioner that there are minor discrepancies in the boundaries which necessitated him to file an application seeking for appointment of an Advocate Commissioner, with an assistance of the local surveyor, for inspecting the property. 5. The trial Court had found that since the petitioner himself had sold a portion of the property to the respondent herein by demarcating the four boundaries and consequently, the respondent had also constructed a house within the four boundaries, the necessity for appointing an Advocate Commissioner for the purpose of measuring and noting down the physical features does not arise. It is on the basis of this finding that the petitioner's application filed under Order 26 Rule 9 of the Civil Procedure Code came to be dismissed. The petitioner challenges the said findings in the present revision petition. 6. I have given careful consideration to the submissions made by the respondent counsels. 7. The object of issuance of a Commission for local investigation under Order 26 Rule 9 of the Civil Procedure Code is not to collect evidence but to elucidate the matters which are local in character and which can only be done on spot investigation. 6. I have given careful consideration to the submissions made by the respondent counsels. 7. The object of issuance of a Commission for local investigation under Order 26 Rule 9 of the Civil Procedure Code is not to collect evidence but to elucidate the matters which are local in character and which can only be done on spot investigation. When the plaintiff comes out with a specific case that the defendant had encroached or is attempting to encroach the suit properties and the defendant in his written statement contradicts or denies such an averment, the ground reality can best be had from a report based on a spot inspection and such a report would only enable the Court to properly and correctly understand the physical features of the suit properties. In a suit, where the prayer sought for is for declaration and mandatory injunction, the fact as to whether the defendant has put up construction within the boundaries of the plaintiff's property could not only be ascertained but would also enable the Court to appreciate the evidences on record with the assistance of a report based on a local inspection. In a suit of this nature, where the discrepancy lays with regard to the boundaries and allegations of encroachment made, it would be, in the interest of both the parties, to have a local inspection with the help of the revenue officials and the prejudice that would be caused to the other party gains relevance here. An application in these circumstances would not amount to collection of evidence but only to elucidate matters which are local in character and which can be done only by a local spot investigation. 8. When the plaintiff has sought for a relief of declaration, it would only go to show that the title over the portion of the suit property is being denied by the defendant and as such, the observation of the trial Court that the defendant had put up his construction only within the boundary of the property which was sold by the plaintiff, may not be sufficient and adequate to reject a request for appointment of an Advocate Commissioner. Such a finding can also be ascertained after proper appreciation of the evidences and the Court may also take into consideration the report of the Commissioner, if necessary. 9. Such a finding can also be ascertained after proper appreciation of the evidences and the Court may also take into consideration the report of the Commissioner, if necessary. 9. In view of the above observations, the order of the trial Court in rejecting the petitioner's application filed under Order 26 Rule 9 of the Civil Procedure Code may not be proper. As such, the order dated 03.03.2018 passed in I.A.No.353 of 2016 in O.S.No.101 of 2014 on the file of the learned Principal Subordinate Judge, Tindivanam is set aside. Consequently, the learned Subordinate Judge, Tindivanam is called upon to take up the said application in I.A.No.353 of 2016 in O.S.No.101 of 2014 and pass appropriate orders by appointing an Advocate Commissioner for the purpose of measuring and noting down the physical features of the petition scheduled properties with the assistance of the concerned revenue officials. The learned Subordinate Judge, Tindivanam shall endeavor to appoint an Advocate Commissioner on such terms deem fit and proper to the trial Court, within a period of two weeks from the date of receipt of the copy of this order. 10. With the above directions, the Civil Revision Petition stands allowed. Consequently, connected Miscellaneous Petition is closed. No costs.