Madras High Court
Chennappan vs Vedichi on 13 February, 2013
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:13.02.2013 CORAM: THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.R.P.PD.No.914 of 2011 and M.P.No.1 of 2011 1.Chennappan 2.Govindaraj 3.Raja 4.Arumugham 5.Rani 6.Jeyalakshmi ... Petitioners/Petitioners/Defendants Vs. 1.Vedichi 2.Villai ... Respondents/Respondents/Plaintiffs Prayer: Petition filed under Article 227 of the Constitution of India, against the Fair and Decretal order dated 21.01.2011 in I.A.No.1068 of 2010 in O.S.No.366 of 2007 on the file of the District Munsif Court, Krishnagiri. For Petitioners : Ms.P.T.Asha for M/s.Sarvabhuman Associates For 1st Respondent : Mr.P.Mani For 2nd Respondent : No appearance (Served) ORDER
The Petitioners/Defendants have preferred the present Civil Revision Petition as against the order dated 21.01.2011 in I.A.No.1068 of 2010 in O.S.No.366 of 2007 passed by the Learned District Munsif Court, Krishnagiri.
2.The Learned District Munsif Court, Krishnagiri, while passing the order in I.A.No.1068 of 2010 dated 21.01.2011, has categorically observed that 'The Advocate Commissioner has filed his Report and Plan on 04.09.2008 and even though an opportunity has been given till 25.09.2009 to file objections, the same has not been filed and when the original suit has been posted in the list presently, belatedly, the petition has been filed and there is no necessity to direct the Advocate Commissioner to file his report' and resultantly, dismissed the petition.
3.The Learned Counsel for the Petitioners/Defendants submits that the trial Court while dismissing the I.A.No.1068 of 2010 in O.S.No.366 of 2007 on 21.01.2011 has overlooked the fact that the report filed by the Commissioner is bereft of details.
4.According to the Petitioners/Defendants, the Advocate Commissioner has not filed a plan drawn to scale, but only submitted a FMB sketch along with his report and also that his report does not specify the boundaries nor the physical features of the properties.
5.Yet another plea taken on behalf of the Petitioners/Defendants is that the main suit O.S.No.366 of 2007, earlier was decreed exparte and later, the Petitioners/Defendants projected an I.A. to restore the suit on file and on 06.10.2010 the suit has been restored to file by the trial Court. Thereafter, the Petitioners/Defendants filed I.A.No.1068 of 2010 before the trial Court praying for an issuance of an order to direct the Advocate Commissioner to re-issue the warrant of Commission to the Commissioner directing him to note down the physical features relating to the boundary description in respect of S.No.115/10, to note the variation in level of the disputed 14 cents, also direct him to file an additional report and plan drawn to scale in respect of the suit S.No.115/10.
6.At this juncture, it is useful for this Court to make a reference to the plaint averments in a panoramic spectrum, which runs to the effect that the Respondents/Plaintiffs in the plaint in O.S.No.366 of 2007 have sought the relief of declaration in respect of their title to suit lands fully described in the schedule. Further, they have also prayed for issuance of a direction by the trial Court in directing the Petitioners/Defendants to deliver vacant possession of the suit lands to the Respondents/Plaintiffs and on their failure or refusal to do so, the possession be delivered to them through process of court.
7.Continuing further, the Respondents/Plaintiffs have also prayed for the relief of mandatory injunction being granted in their favour, in directing the Petitioners/ Defendants to remove the thatched shed and other superstructure or construction put up over the suit lands. Finally, the Respondents/ Plaintiffs have also sought a sum of Rs.10,000/- towards damages from the Petitioners/Defendants.
8.The Petitioners/Defendants 1, 2 and 4, in their Written Statements (adopted by others), have, inter alia, stated that '.... the said Arunachala Gounder had retained the said 14 cents of land which is lying on the South Western corner of S.No.115/10. In fact the bit of land in the South Western corner retained by Arunachala Gounder actually measured 14 cents. Out of that, Panchayat road was formed in two cents. In the remaining 12 cents, 1st defendant's family got 6 cents and his younger brother Dhandapani got Southern half etc.' Further, it is also mentioned in paragraph 4 of the Written Statement that 'Even in the Commissioner's report, the said 12 cents of land lying on the South West corner of S.No.115/10 is indicated in his plan. In the said Commissioner's report, the existence of the thatched house, water tank, bath room, etc. in the occupation of the 4th defendant is mentioned'.
9.That apart, in paragraph 7 of the Written Statement, it is also specifically mentioned as follows:
"7. ... It is further false and imaginary to allege that the defendants have no right or title or interest in the suit lands and that the defendants committed unlawful acts by trespassing in to the suit lands and putting up thatched shed in 10 cents of land and that the alleged proprietary right of the plaintiffs have been infringed. It is false and imaginary to allege that the Plaintiffs are entitled to seek damages to the tune of Rs.1000/- (Rupees Ten Thousands) tentatively and that the plaintiffs also entitled to seek mesne profit till the delivery of possession.'
10.It is not in dispute that the Advocate Commissioner has filed his report in I.A.No.1068 of 2010 in O.S.No.366 of 2007 on the file of the trial Court. In his report, it is mentioned that again on 9-8-2008 he visited the suit property after due notice to the petitioner and Respondent Counsel, on that day he measured the property with the help of firka Surveyor in the presence of Village Administrative Officer and petitioner and his Junior Counsel and that the Survey number of the suit property in dispute is S.No.115/10 as per the revenue records (A Register) the measurement of the land is 0.29.0 hectares. Further the Patta stands in the name of Villalli and Vedichi son of Vedi. In the suit land, disputed portion is shown in red colour in plan.
11.Moreover, he has found that there is a thatched hut and also found that there is a Mini water tank and also found cart tract and found temporary bath room without roof and made of coconut leaves it lies to the south of the hut, besides finding there are two coconut trees in the suit land.
12.In the 'A' Register, Survey No.115/10 is mentioned as 'an extent of 0.29.0' [as seen in page No.15 of the typed set of papers filed].
13.In the counter affidavit filed by the 1st Respondent/1st Plaintiff (before the trial Court), it is, among other things, mentioned that '... It is false and incorrect to say that Arunachalam intended to sell 58 cents only in favour of Ellammal and others. At the time of selling the lands in S.No.115/10, the southern boundary was shown as the lands of Buddammal because at the time Buddammal was in occupation of the same. As the full extent in S.NO.115/10 was conveyed, the boundaries shown as then existed, cannot be found fault.' Also, in paragraph 5, it is mentioned that 'After encroachment, for putting up the thatched shed the defendants dumped the gravel and soil and made the encroached portion higher in level. The Commissioner has no power or authority to take up investigation about the title holders or persons in possession of the lands situate in all four directions. It is a matter of evidence at the time of trial. The admitted case of the plaintiffs is that the defendants encroached the portion on the southern side of S.No.115/10 and put up thatched shed. So the assigning of Door Numbers in the name of the 4th defendant is immaterial.'
14.Moreover, it is also stated that the Commissioner filed the report even in the end of the year 2008, the Petitioners/Defendants kept quiet for nearly 2 years and have chosen to file the I.A.No.1068 of 2010 to delay the trial.
15.It is to be remembered that the aim of Order 26 Rule 9 of Civil Procedure Code is not to assist the litigant to gather evidence, where he himself can obtain the same. It is true that a Court of Law cannot fetter a litigant/party from relying on the best evidence, if such evidence can be collected with the aid of an Advocate Commissioner.
16.A Court of Law can order for appointment of a Commissioner for local inspection in order that it may up better appreciate the evidence already on record and to be projected through the appointment of an Advocate Commissioner's report to be presented by him. The power to appoint an Advocate Commissioner is discretionary in nature for enabling an Advocate Commissioner to revisit the property and request him to submit an additional report is to be done by a Court of Law only by exercising its discretionary power with utmost care and caution. Appointing a second Advocate Commissioner which directing a very same Commissioner to visit the suit property and directing him to file additional report cannot be done either as a matter of routine or as a usual course.
17.It is for the Revision Petitioners to make out a case subject to the satisfaction of the concerned Court, in this regard. Even if a Court of Law rejects the objection of the parties in regard to the report of an Advocate Commissioner, that is not the end of the matter. The parties are entitled to request the Court to consider the evidence as per the decision in Harihar Mistra V. Narhari, AIR 1966 Orissa at page 121. If the Court or any of the parties requires that Advocate Commissioner to examine in regard to the contents of his report which require proper elucidation, then, the Court is at its own discretion to permit the parties or it can itself suo motu examine the Advocate Commissioner as Court Witness.
18.It cannot be gainsaid that rejection of the petition for appointment of an Advocate Commissioner does not involve any decision of any issue or even adjustment of any right.
19.Be that as it may, on a careful consideration of respective contentions, it is crystal clear that the main suit O.S.No.366 of 2007 has been posted in the special list earlier before the trial Court for final hearing and only at that point of time, the Petitioners/ Defendants have chosen to file I.A.No.1068 of 2010 making a request to the trial Court for issuance of a direction enabling the Advocate Commissioner, who submitted an earlier report, to revisit the suit property and to submit his additional report etc. It cannot be gainsaid that earlier in I.A.No.1068 of 2010 the Advocate Commissioner has submitted his report and in view of the fact the Commissioner [as an officer of Court] has stated that he has shown the suit land, disputed portion in red colour in plan [which is disputed by the Petitioners/Defendants side] stating that the Advocate Commissioner has only enclosed the Surveyor's FMB sketch, this Court holds that these are all matters which are to be looked into/gone into by the trial Court during the conduct of trial of the main suit, where parties are to adduce/let in oral and documentary evidence. At that point of time, it is open to the Revision Petitioners/Defendants to examine the Advocate Commissioner who has submitted his report [by calling him as a Court Witness] and to put necessary questions touching upon the suit land, disputed portion, purportedly shown in red colour in the plan etc. Viewed in that perspective, it is held by this Court that I.A.No.1068 of 2010 filed by the Petitioners/Defendants is nothing but a surplusage, supernumerary, redundant and otiose one. Consequently, the Civil Revision Petition fails.
20.In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Resultantly, the order passed by the trial Court in I.A.No.1068 of 2010 dated 21.01.2011 is affirmed by this Court for the reasons assigned in this Revision. It is made clear that the dismissal of the Revision Petition will not preclude the respective parties to examine the Advocate Commissioner as competent witness and to cross examine him in the manner known to law and in accordance with law. In this regard, the trial Court is directed to provide adequate/enough opportunities to parties. If need be, it is also open to the parties concerned to examine the Surveyor who has given the FMB sketch by taking proper summons to him after obtaining necessary permission from the trial Court concerned. Since the suit is of the year 2007 [5 years old suit] and earlier has posted in the special list, the trial Court is directed to immediately take up the main suit O.S.No.366 of 2007 for final hearing and to dispose of the main suit in a dispassionate manner (uninfluenced with any of the observations made in this Revision), within a period of three months from the date of receipt of copy of this order and to report compliance to this Court. Consequently, connected miscellaneous petition is also dismissed.
13.02.2013 Index : Yes/No Internet : Yes/No Sgl To
1.The District Munsif Court, Krishnagiri.
2.The Sub Assistant Registrar (Judicial), Madras High Court, Madras.
(To Watch and Report) M.VENUGOPAL,J.
Sgl C.R.P.PD.No.914 of 2011 13.02.2013