Madras High Court
T.K.Krishnamurthy vs Tamil Nadu Water on 28 July, 2006
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 28/07/2006
Coram
The Hon'ble Mr.JUSTICE S.RAJESWARAN
C.R.P. PD No.579 of 2005
T.K.Krishnamurthy .. Petitioner
-Vs-
1.Tamil Nadu Water
and Drainage Board
rep., by its Senior Engineer
RWS Division, 275 A
Shola House, Ootacamund
The Nilgiris
2.The Tahsildar
Kundah Taluk
The Nilgiris .. Respondents
Revision Petition filed against the order dated 10.11.2004, passed in
C.M.A. No.5 of 2004, on the file of the Sub Judge, The Nilgiris at
Uthagamandalam reversing the order in I.A.No.265 of 2003 in O.S. No.80 of
2002 dated 12.7.2004, on the file of the District Munsif, Uthagamandalam.
!For Petitioner : Messrs.T.S.Sivagnanam
^For Respondents : No Appearance
:ORDER
This Revision Petition has been filed against the order dated 10.11.2004, passed in C.M.A.No.5/2004, on the file of the Sub-Judge, The Nilgiris at Uthagamandalam reversing the order in I.A.No.265/2003 in O.S.No.80/2002 dated 12.7.2004, on the file of the District Munsif, Uthagamandalam.
2. The 2nd plaintiff in O.S.No.80/2002 is the revision petitioner.
3. The revision petitioner and another filed O.S.No.80/2002 for a permanent injunction restraining the defendants, the respondents herein from interfering in their peaceful possession and putting up any construction in the suit schedule property which is 1.5 acres of agricultural lands in patta No.67.
4. During trial, P.W.1 in his cross-examination stated that he did not know in which survey Number a Well has been put up and he has also stated that there is no Well in existence in the lands owned by him or abutting his lands. At that time, the respondents herein filed I.A.No.265/2003 for appointment of Advocate Commissioner to inspect the property in patta No.25 and to submit a report with Plan.
5. The trial court dismissed the said I.A.No.265/2003 and against which the respondents filed C.M.A.No.5/2004.
The lower appellate court allowed the Appeal by directing the trial court by appointing an advocate commissioner and aggrieved by the order of the lower appellate court, the above Civil Revision Petition has been filed under Article 227 of the Constitution of India.
6. Heard the learned counsel for the revision petitioner. Though notices having been served on the respondents, there was no representation on behalf of the respondents either through counsel or in person.
7. P.W.1 on examination stated that there was no Well in existence in any land owned by him or abutting his land. The patta number of the suit schedule property is 67. Whereas the respondents sought for appointment of advocate commissioner in I.A.No.265/2003 for ascertainment of existence of any Well put up in patta No.25. Therefore it was rightly rejected by the trial court. The lower appellate court has also held that the trial court is absolutely correct in holding that the petition sought for by the respondents herein is unnecessary at this juncture. Still the appellate court allowed the Appeal on the ground that if the Commissioner is appointed and the land is measured with the help of the qualified surveyor, the correct particulars regarding the survey number, the patta number and the physical features of the suit property would be brought to the knowledge of the court and thereby the court would come to a just conclusion in the suit.
8. I am unable to accept the reasons given by the lower appellate court for the appointment of Advocate Commissioner after holding that the petition itself is unnecessary at this juncture.
9. The report of the advocate commissioner alone can never be the basis for deciding the suit as Commissioner should not be appointed to gather evidence to prove the case of the parties. Parties should prove their case by themselves by letting in legally acceptable evidence and the report of the Commissioner can only aid the court in evaluating the evidence to come to a just conclusion. But in this case Advocate Commissioner was sought for and appointed to gather the evidence to disprove the case of the revision petitioner in respect of a property which is not subject matter of the suit.
10. Hence I am inclined to interfere with the order of the lower appellate court and the same is set aside. The Civil Revision Petition is allowed. No costs. C.M.P.No.6204/2005 is closed.
sks To
1.The District Munsif, Uthagamandalam.
2.The Sub-Judge, Uthagamandalam.