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2019 DIGILAW 2238 (MAD)

Subbaiah v. Sivaperumal

2019-08-30

SENTHILKUMAR RAMAMOORTHY

body2019
ORDER : Senthilkumar Ramamoorthy, J. 1. This Civil Revision Petition is filed by the Appellant in A.S. No. 115 of 2012 so as to challenge the order dated 19.11.2013 in I.A. No. 204 of 2012 in A.S. No. 115 of 2012 on the file of the Principal Subordinate Judge, Tirunelveli (the First Appellate Court). The said I.A. was filed to scrap the report submitted by the Advocate Commissioner before the trial Court on 10.03.2010 and to appoint a new Advocate Commissioner to inspect the properties with the assistance of the Taluk Surveyor and submit a report thereon., The present Civil Revision Petition is filed to set aside the order dismissing the said I.A. 2. The Respondent herein is the Plaintiff in O.S. No. 511 of 2007 which was filed for a permanent injunction to restrain the Revision Petitioner/Defendant from interfering with the Plaintiff's peaceful possession and enjoyment of the plaint schedule property at plot No. 43A at Kodaganallur village, Tirunelveli Taluk. After the written statement was filed in the said suit raising a dispute with regard to the identity of the property and the boundaries thereof, an interim application was filed for the appointment of an Advocate Commissioner. Pursuant thereto, the said application was allowed and a warrant was issued on 09.10.2007 to the Advocate Commissioner in I.A. No. 1129 of 2007 in the said suit. In execution of the said warrant, the Advocate Commissioner inspected the property on 09.10.2007 and submitted a report dated 12.10.2007. Thereafter, I.A. No. 1508 of 2008 appears to have been filed to re-issue the warrant to the same Advocate Commissioner and by order dated dated 22.01.2009, the warrant was re-issued to the same Advocate Commissioner. Thereafter, the said Advocate Commissioner inspected the property once again on 09.01.2010 along with the Surveyor. 3. Based on such inspection, the Advocate Commissioner submitted a report dated 10.03.2010 along with the plan submitted by the Surveyor and a sketch of the property. The Revision Petitioner filed objections to the report of the Advocate Commissioner on 12.01.2010 and 16.04.2010. In the said objections, the main grievance of the Revision Petitioner appears to be that the measurements were taken only from West to East and that the property of the Revision Petitioner/Defendant, namely, Plot No. 43 is stated to be situated within the road. The Revision Petitioner filed objections to the report of the Advocate Commissioner on 12.01.2010 and 16.04.2010. In the said objections, the main grievance of the Revision Petitioner appears to be that the measurements were taken only from West to East and that the property of the Revision Petitioner/Defendant, namely, Plot No. 43 is stated to be situated within the road. It is further stated therein that there is a water body between the Revision Petitioner's property and the road and that, therefore, the findings of the Advocate Commissioner are incorrect. However, the Revision Petitioner did not file an application to scrap the report of the Advocate Commissioner and it does not appear as if the Advocate Commissioner was cross examined by the Revision Petitioner. In these facts and circumstances, the suit was disposed of by judgment and decree dated 08.04.2011 in favour of the Respondent/Plaintiff. The said judgment and decree was appealed against by the Revision Petitioner by filing A.S. No. 115 of 2012 before the First Appellate Court. The application for scrapping the report dated 10.03.2010 of the Advocate Commissioner and to appoint a new Advocate Commissioner was filed in the said appeal suit, which culminated in the order of dismissal dated 19.11.2013. 4. I heard the learned counsel for the Revision Petitioner and the learned counsel for the Respondent. The learned counsel for the Revision Petitioner submitted that the report of the Advocate Commissioner is patently erroneous. In this regard, he pointed out that in the report dated 12.10.2007, it is mentioned that the Revision Petitioner's plot, namely, plot no. 43 is to the east of the suit schedule property, namely, Plot no. 43A. On the other hand, he submits that in the subsequent report dated 12.10.2007, it is stated that the Thenvadal road is to the east of Plot no. 43 A and that Plot no. 43, which was renumbered after sub division as Plot no. 36, is within the boundaries of the said Thenvadal road. 5. According to the learned counsel for the Revision Petitioner, the said finding is completely erroneous. He further submits that the trial Court relied heavily on the report of the Advocate Commissioner while passing the judgment and decree dated 08.04.2011. Given the fact that the suit is for a permanent injunction not to disturb the peaceful possession of the Plaintiff, as regards Plot no. He further submits that the trial Court relied heavily on the report of the Advocate Commissioner while passing the judgment and decree dated 08.04.2011. Given the fact that the suit is for a permanent injunction not to disturb the peaceful possession of the Plaintiff, as regards Plot no. 43 A, he submitted that the report of the Advocate Commissioner assumes paramount importance when there is a dispute with regard to identity and boundaries. Therefore, he submitted that it is in the interest of justice that a new Advocate Commissioner should be appointed so as to ascertain the correct boundaries of both Plot nos. 43A and 43. 6. In response and to the contrary, the learned counsel for the Respondent submitted that the First Appellate Court properly considered the relevant facts and circumstances and the applicable law while dismissing the I.A. for scrapping the report dated 12.10.2010 and for appointment of a new Advocate Commissioner. He further submitted that the Revision Petitioner did not file an application before the trial Court to scrap the report of the Advocate Commissioner. He also submitted that the Revision Petitioner had the opportunity to cross examine the Advocate Commissioner with regard to this report but did not avail of the said opportunity. In these facts and circumstances, he submitted that the interim application before the First Appellate Court to scrap the report of the Advocate Commissioner, which was relied upon by the trial Court, cannot be countenanced. 7. In support of his submissions, the learned counsel for the Respondent relied upon the judgments, which are set out below with a brief description of context and principle: (i) Gnanaraj v. Bakyalakshmi (2006) 4 CTC 258 : LNIND 2006 BMM 22 : (2006) 4 MLJ 380 wherein, at paragraph nos. 8 to 10, 14 & 15, this Court held that the report of Advocate Commissioner constitutes evidence that shall form part of the record of the case and that the Court has the power to suo moto examine the Advocate Commissioner or the parties could do so with the permission of the court; (ii) Kitnammal v. Nallarselvan (2005) 1 CTC 356 : LNIND 2005 MAD 406 : (2005) 2 MLJ 227 , wherein, at paragraph nos. 9 to 11, the Court held that it is irregular and illegal to appoint a second Advocate Commissioner before setting aside or scrapping the report of the first Advocate Commissioner and that it is always open to the parties to file an appropriate petition for re- issuing the warrant to the first Advocate Commissioner; (iii) Judgment dated 18.02.2019 in K Sivanu Velar and Another v. Paramasivam Velar and Others S.A. (MD) No. 240 of 2009 wherein, at paragraph no. 15, it was held that objections should be raised against the report of the Advocate Commissioner at the relevant point of time and that the Civil Procedure Code enables a party to cross examine the Advocate Commissioner with permission. Therefore, it is not permissible to raise the objection that sufficient opportunity was not provided in that regard at the appellate stage; and (iv) P.R. Chockalingam v. M. Pichai and Others 2003-4-LW 77 : LNIND 2003 MAD 342 : (2003) 2 MLJ 399 , where the Court held that an application for appointment of an Advocate Commissioner pending appeal should not be ordered for the sake of asking but should be decided by a proper application of mind to the facts of the case. By relying upon the aforesaid judgments, the learned counsel submitted that the First Appellate Court correctly dismissed the application filed by the Revision Petitioner on the ground that the Revision Petitioner did not file an application to scrap the report of the Advocate Commissioner before the trial Court and also did not cross examine the Advocate Commissioner before the trial Court. He concluded his submissions by contending that the said order of the First Appellate Court is not liable to be interfered with by this Court. 8. The pleadings, impugned orders and oral submissions of both parties were carefully considered. The record shows that the Advocate Commissioner submitted a report dated 12.10.2007 pursuant to the issuance of a warrant on 09.10.2007 in I.A. No. 1129 of 2007. Thereafter, the record further shows that the warrant was re-issued to the same Advocate Commissioner in I.A. No. 1508 of 2008 by order dated 22.01.2009. Consequently, pursuant to the re-issuance of warrant, the Advocate Commissioner, once again, inspected the property on 09.01.2010 in the presence of the Advocates representing the parties and with the assistance of the Surveyor. Thereafter, the record further shows that the warrant was re-issued to the same Advocate Commissioner in I.A. No. 1508 of 2008 by order dated 22.01.2009. Consequently, pursuant to the re-issuance of warrant, the Advocate Commissioner, once again, inspected the property on 09.01.2010 in the presence of the Advocates representing the parties and with the assistance of the Surveyor. In this connection, it is relevant to point out that the Advocate Commissioner's warrant was to inspect the suit schedule property, namely, Plot no. 43A, which was subsequently re-numbered as Plot no. 35. In other words, the Advocate Commissioner was not required to inspect or measure Plot no. 43, namely, the Revision Petitioner/Defendant's property. 9. On perusal of the report dated 10.03.2010 of the Advocate Commissioner, it is clear that the main focus of the report is to identify and measure Plot no. 43 A (new number 35) and to identify the structures within the said plot. This has been duly carried out by the said Advocate Commissioner who also recorded that he has demarcated the shed in Plot no. 43 A as ABCD in the sketch annexed to his report. While the Revision Petitioner/Defendant filed objections dated 12.01.2010 and 16.04.2010 to the report of the Commissioner, largely with regard to the fact that Plot no. 43 (new number 36) is stated to be within the boundaries of or within the road and also on the basis that the measurements were taken only from west to east, no application was admittedly filed to scrap or eschew the report of the Advocate Commissioner and to thereafter appoint a new Advocate Commissioner. The record also does not reflect that the Revision Petitioner/Defendant cross examined the Advocate Commissioner. As a result, the trial Court relied upon the Advocate Commissioner's report while issuing the judgment and decree dated 08.04.2011 which is challenged in A.S. No. 115 of 2014. 10. The record also does not reflect that the Revision Petitioner/Defendant cross examined the Advocate Commissioner. As a result, the trial Court relied upon the Advocate Commissioner's report while issuing the judgment and decree dated 08.04.2011 which is challenged in A.S. No. 115 of 2014. 10. On considering the totality of facts and circumstances and the judgments on the subject, I am of the view that the order of the First Appellate Court is not liable to be interfered with for the following reasons: (i) The warrant was issued not once but twice to the same Advocate Commissioner and pursuant thereto, he submitted reports dated 12.10.2007 & 10.03.2010; (ii) The Revision Petitioner/Defendant did not file an application before the trial Court to scrap the report dated 10.03.2010; (iii) The Revision Petitioner/Defendant does not appear to have requested permission of the trial Court to cross examine the Advocate Commissioner as per Order 26 Rule 10(2). (iv) The scope of the suit and, consequently, the scope of the warrant of the Advocate Commissioner was to inspect Plot no. 43 A (renumbered as Plot no. 35) and to identify and fix the boundaries thereof, including structures thereon. It was not to identify or measure Plot no. 43 (renumbered plot no. 36), i.e. the Revision Petitioner/Defendant's plot. (v) The trial, Court relied upon the report of the Advocate Commissioner in passing the judgment and decree. (vi) In these facts and circumstances, it is inappropriate and unjust to scrap the report of the Advocate Commissioner and appoint a new Advocate Commissioner in the First Appellate Court. 11. For all the reasons afore-stated, the impugned order is upheld and the Civil Revision Petition is dismissed. No costs. Consequently, connected M.P. (MD) No. 1 of 2014 is closed.