Madras High Court
V.M.B.Mohammed Gani vs S.Ayesha Siddika on 24 July, 2014
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.07.2014 CORAM THE HON'BLE MS. JUSTICE R.MALA Civil Revision Petition (PD).No.1856 of 2013 and M.P.No.1 of 2013 and M.P.No.1 of 2014 --- V.M.B.Mohammed Gani ... Petitioner Vs. S.Ayesha Siddika ... Respondent CRP filed under Article 227 of the Constitution of India to call for the records and set aside the judgment dated 19.12.2012 made in I.A.No.626 of 2012 in O.S.No.68 of 2010 on the file of District Munsif Court, Thiruvarur and direct re-issuance of commission to the Advocate Commissioner to measure the properties of both the petitioner and the respondent with the help of a Taluk Head Surveyor and file a detailed report together with the report of the Surveyor. For petitioner : Mr.B.Ramamoorthy For respondent : Mr.S.Suresh for Mr.T.Srinivasaraghavan Associates O R D E R
The petitioner is the plaintiff in O.S.No.68 of 2010. The respondent is the defendant in the suit. The petitioner herein, filed the said suit for mandatory injunction and delivery of vacant possession from the defendant. In the written statement, the respondent herein denied the claim of the petitioner.
2. During the pendency of the suit, the petitioner herein filed I.A.68 of 2010, requesting the court to appoint an Advocate Commissioner to measure the schedule property with the help of a surveyor and to give a report. The Advocate Commissioner filed a report and objections to the report was also taken on file. Thereafter, the petitioner/plaintiff filed another I.A.No.626 of 2012 for reissuance of the warrant to the Advocate Commissioner and to scrap the report already filed and to reissue the warrant. The said I.A., was rejected by the court below. Aggrieved by the said dismissal order passed in I.A.No.626 of 2012, the petitioner/plaintiff filed the present Civil Revision Petition.
3. The learned counsel appearing for the petitioner would submit that the petitioner/plaintiff filed the suit for mandatory injunction in respect of B Schedule property stating that the respondent/defendant has encroached upon his property and made an illegal construction; the respondent/defendant filed written statement and contested the same stating that the property belongs to him and she has not encroached upon the plaintiff's property. The learned counsel further submitted that during the pendency of the suit in O.S.No.68 of 2010, I.A.No.176 of 2011 was filed by the plaintiff/petitioner for appointment of Advocate Commissioner; the trial court, after hearing both sides appointed an Advocate Commissioner directing to measure the property along with the Surveyor. The learned counsel submitted that at the time of inspection by the Advocate Commissioner, the petitioner has given a memo of instructions to the Advocate Commissioner which contains the following works:-
1. jhth bc2l;a{y; v y; rhnt vz; /41-2 d; tp!;jPh;zj;ij mse;J Fwpg;gpl ntz;Lk;/ 2/ jhthgp/ bc2l;a{ypy; fz;l g[y vz/;41-2 tp!;jPuzk;. ePsk;. mfyk; mse;J Fwpg;gplntz;Lk;/ 3/ thjp tPl;od; bjd;g[wk; jha; Rtw;wpw;F mg;ghy; cs;s/gp bc2l;a{ypy fz;l brhj;jpy; Mf;ukpg;g[ gFjpia mse;J tiuglk; bfhLf;f ntz;Lk;/ 4/ jhth gp bc2l;a{ypy cs;s fl;Lkhd gzp tpguk;. ePs mst[ mjd; jd;ik Mfpaitfis Fwpg;gpl ntz;Lk;/
4. The learned counsel for the petitioner further submitted that after inspection along with the surveyor, the Advocate Commissioner has filed a report; after filing of the report, admittedly, the petitioner/plaintiff filed objections and thereafter, he has filed I.A.No.626 of 2012 for reissuance of warrant after scrapping the earlier report and measure the property along with the Head Quarters Surveyor; the trial after hearing both sides, dismissed the petition in I.A.No.626 of 2012 and against the rejection of the reissuance of the warrant prayed for by the plaintiff/petitioner, the present petition is filed.
5. It is the further case of the learned counsel for the petitioner that in between the plaintiff's house and defendant's house, there was a land measuring 10.3 ' in breadth and 84' in length on the southern side of the petitioner's property, which has been totally encroached by the respondent/plaintiff and therefore the petitioner/plaintiff prayed for mandatory injunction in the suit.
6. According to the learned counsel for the petitioner, the Advocate Commissioner and the Surveyor's report is to the effect that there are no sub-divisions in the schedule property; in Survey No.41/2, the extent of land is very large and there exists number of houses and therefore, it is not feasible to measure the property as per the Revenue records; in such circumstances, the petitioner/plaintiff approached the trial Court with another application to reissue the warrant and to scrap the old report and the dismissal of such application has given rise to the present civil revision petition.
7. Learned counsel for the petitioner, in order to substantiate his arguments, relied on the following judgments:-
(i)(2008) 6 MLJ 647 in the case of A.Palaniappan and K.Nallasamy and Others.
(ii)(2009) 1 MLJ 1334 in the case of Kamala Devi Vs. T.P.Manoharan
(iii) 2013 (2) MWN (Civil) 619 in the case of V.Ganesan Vs. Kamal Jain and another.
The learned counsel appearing for the petitioner, by relying on the above judgments submitted that the trial court, without considering the decisions of this Court and Apex Court, wherein, the proportion is to the effect that if there is necessity, the court can always reissue the warrant to Advocate Commissioner under Civil Procedure Code, rejected the prayer of the plaintiff/petitioner for reissue of warrant, which is not sustainable. Learned counsel thus prayed for interference of this Court in the order passed by the trial court in I.A.No.626 of 2012.
8. Learned counsel appearing for the respondent/defendant submits that the defendant is the owner of the property and there is no vacant site in between both the properties of the petitioner/plaintiff and respondent/defendant and it is settled principle of law that an Advocate Commissioner cannot be appointed to ascertain or find out the encroachment upon the property and the relief sought by the petitioner to issue a second Advocate Commissioner to measure the property cannot be granted. The learned counsel for the respondent relied upon the following decisions to support his arguments:-
1.2008 (3) CTC 597 (K.M.A.Wahab and 5 others Vs. Eswaran and another) 2.2010-4-L.W.318 ( Rabiya Basheer Ali Vs. C.Devandra Prased The learned counsel for the respondent thus prayed for dismissal of the present civil revision petition.
9. I have considered the rival submissions made on both sides and perused the records carefully.
10. On a perusal of the typed set of papers filed by the petitioner, it is seen that the petitioner/plaintiff has filed the suit for mandatory injunction in respect of 'B' Schedule property and also for mean profits. It is stated in the plaint that the plaintiff got the property by way of settlement deed dated 20.02.2008 and he is in possession and enjoyment of the same; on the southern side of the property, there was a vacant land measuring 10 feet 3 inches breadth and 84 feet length, which was used by the plaintiff for parking the car. However, the above said vacant site which was shown as 'A' schedule property was encroached upon by the respondent/defendant and the encroached portion is shown as 'B' Schedule property. It is seen that the plaintiff filed the suit for mandatory injunction and delivery of vacant possession of the above stated 'B' schedule property by the respondent/defendant, wherein, the plaintiff filed I.A.No.176 of 2011 for appointment of Advocate Commissioner to measure the property and the said petition was ordered by the trial court; however, the Advocate Commissioner and the Surveyor who inspected the property filed a report stating that there are no sub-divisions in the schedule property; in Survey No.41/2, the extent of land is very large and there exists number of houses and therefore, it is not feasible to measure the property as per the Revenue records; in such circumstances, the petitioner/plaintiff approached the trial Court with another application to reissue the warrant and to scrap the old report and the dismissal of such application has given rise to the present civil revision petition. It is pertinent to note that work memo was given by the plaintiff/petitioner to carry on work by the Advocate Commissioner.
11. Before going into the question whether the trial court is correct in dismissing the application filed by the plaintiff/petitioner for reissuance of warrant, it is appropriate for this Court to look into the decisions relied on by both sides.
12. As far as the decision relied on by the learned counsel appearing for the petitioner reported in (2008) 6 MLJ 647 ( A.Palaniappan Vs. K.Nallasamy and Others) is concerned, in the said decision, in paragraph No.7, it is held as follows:-
7. It is true that an earlier point of time, an Advocate Commissioner was appointed by the trial Court at the instance of the respondents. In pursuance of the warrant issued to the Advocate Commissioner, he had inspected the property and submitted the report. After a period of about two years, the petitioner has come up with the present application to remit the report to the Advocate Commissioner and to file a fresh report in the light of the objections filed by the petitioner to the earlier Commissioner's report. The learned trial judge observed that the details which are sought to be collected by way of remitting the report to the Advocate Commissioner could be elicited by examining the Advocate Commissioner and such being the case, the application to remit the warrant to the Advocate Commissioner with a prayer to file a fresh report is clearly unwarranted in the facts and circumstances of the case. However, the fact remains that the petitioner has preferred objections to the report of the Advocate Commissioner and it was his case before the trial court that the plan drawn by the Advocate Commissioner was not in accordance with the actual measurement of the property and in fact, the inspection was conducted in the absence of the petitioner. The prayer in the application is only to remit the warrant to the very same Advocate Commissioner for the purpose of filing a fresh report after measuring the property with the help of a surveyor, but of course, taking into consideration the objection filed by the present petitioner. All the procedures are man made and the ultimate goal is to do complete justice. The petitioner being the plaintiff in the suit, the burden is on him to prove the plaint averments for the purpose of projecting his case, the petitioner has sought the report of an Advocate Commissioner by remitting the warrant to the very same Commissioner and a such I do not find any reason to deny the relief to the petitioner. Therefore, I am inclined to allow this Civil Revision Petition by setting aside the order dated 18.06.2007 in I.A.No.394 of 2007. In my considered view, the above cited decision is not application to the case on hand, since in the reported decision, the inspection was conducted in the absence of the petitioner and that this Court held that all the procedures are man made and the ultimate goal is to do complete justice and the petitioner being the plaintiff in the suit, the burden is on him to prove the plaint averments and for the purpose of projecting his case, the relief sought for viz., remitting the warrant to the very same Advocate Commissioner was ordered. However, in the present case, at the time of inspection by the Advocate Commissioner and the Surveyor, the plaintiff/petitioner was very much present and therefore, the situation of applying the decision of this Court reported in (2008) 6 MLJ 647 (cited supra) does not arise herein.
13. The other decision relied on by the learned counsel for the petitioner is the decision reported in (2009) 1 MLJ 1334 ( Kamala Devi Vs. T.P.Manoharan) , wherein, this Court in paragraph 9, held as under:-
9. Therefore, the trial court was wrong in dismissing the application, as if the petitioner seeks an order for second commission, which was actually intended to clarify the earlier report of the Commissioner by way of re issuance of warrant of commission. Similarly, the trial court was wrong in holding that the measurements given by the Commissioner is his first inspection are sufficient to decide the issue. Therefore, it has become necessary to interfere with the order of the trial court in this revision. Accordingly, the civil revision petitioner is allowed and the impugned order of the trial court dated 7.3.2008 passed by the District Munsif-cum-Judicial Magistrate, Nannilam in I.A.No.362 of 2007 in O.S.No.52 of 2007 is set aside. In my considered view, in the above cited decision, the second commission was actually intended to clarify the earlier report of the Commissioner by way of re issuance of warrant of commission, however, in the present case, the plaintiff pray for scrapping of the old report of the Advocate Commissioner and therefore, the decision reported in (2009) 1 MLJ 1334 cannot be of any assistance to the petitioner herein.
14. The third decision relied on by the learned counsel for the petitioner is the decision reported in 2013 (2) MWN (Civil) 619 (V.Ganesan Vs. Kamal Jain and another) and reference is made to paragraph Nos. 7 to 9, which is usefully extracted below:-
7. A perusal of the Pleadings of both parties will make it clear that there is an issue as to whether the pathway really forms part of the Suit property. Of course, the Commissioner in his earlier report has submitted that there is a pathway. That is very seriously objected to by the Petitioner/Plaintiff. But, the Commissioner did not have the benefit of measuring the Suit Property and give a Specific finding as to whether the so called pathway forms part of the Suit Property or not. Apart from that, at the time, the Commissioner visited the property, the Petitioner was not present to identify the Suit property. In such circumstances, in my considered opinion, it will be appropriate to request the very same Commissioner to measure the Suit property with the help of Surveyor and to file a Supplemental Report.
8. Of course, it is true that in the normal course, without scraping the earlier report for defects, it is not possible to appoint a Commissioner for the same purpose. But here, the earlier Commissioner's Report need not be scrapped because by re-issuing the warrant, the Commissioner is directed only to submit an Additional Report. Thus, both Report will be on the file of the Court. Above all, a perusal of the impugned order of the Lower Court would go to show that the Lower Court has dismissed the Interlocutory Application on the ground that the present Application was filed when the Interlocutory Application for Temporary Injunction was under consideration and also because the earlier Commissioner Report was available.
9. In my considered opinion, this reasoning cannot be accepted at all for the reason that the Commissioner's report is mainly for the purpose of resolving the issues in the Suit. May be not that the Commissioner's Report can be used at the interlocutory stage. But, simple because, the Interlocutory Application for injunction is in progress, the request for re-issuance of Commissioner's Warrant should not have been rejected. Thus, the reason stated by the learned Additional District Munsif, Alandur, for the dismissal of the Interlocutory Application is not at all acceptable. For the foregoing reasons, I am inclined to interfere with the order of the Lower Court. Even in the above decision, at the time, the Commissioner visited the property, the petitioner was not present to identify the suit property and hence, this Court allowed the I.A., for measuring the suit property with the help of Surveyor and to file a Supplemental report. The said decision cannot be relied on by the learned counsel for the petitioner herein since the plaintiff/petitioner was very much present at the time of inspection by the Advocate Commissioner and the Surveyor.
15. On the other hand, the learned counsel for the respondent relied on the decision reported in 2008 (3) CTC 597 ( K.M.A.Wahab and 5 others Vs. Eswaran and another) wherein, this Court has held that Advocate Commissioner cannot be appointed to collect evidence to find out factum of possession; as far as factum of possession is concerned, Court alone gather evidence through parties and it cannot entrust said matter to Advocate Commissioner to collect evidence. Further, in the other decision of this Court relied on by the learned counsel for the respondent reported in 2010-4-L.W.318 (Rabiya Basheer Ali Vs. C.DEvandra Prasad), this Court held that an exparte interim order for appointment of Commissioner under 18(A) of the Act could be justified, only when a landlord or tenant is high-handedly, started in pulling down a portion of the building or making unauthorised construction or causing waste or damages or creating public nuisance, by way of causing annoyance, in order to safe guard the property and protect the valuable right of an aggrieved party, otherwise only after providing opportunity to the other side, Advocate-Commissioner be appointed.
16. In the case on hand, the Advocate Commissioner was asked to carry out his work as per the work memo issued by the Plaintiff/Petitioner and after inspection of the schedule property, the Advocate Commissioner along with the Surveyor has given a report stating that there are no sub-divisions in the schedule property; in Survey No.41/2, the extent of land is very large and there exists number of houses and therefore, it is not feasible to measure the property as per the Revenue record. Further the report gives the measurement of the property of the plaintiff and defendants separately. In such circumstances, I am of the view that reissuance of warrant does not arise. Further more, it is well settled principle that Advocate Commissioner cannot be appointed to collect evidence to find out factum of possession. Further more, in the suit filed by the plaintiff, the plaintiff has admitted that his portion of 10.3' breadth and 84' length property was encroached upon by the defendant and since the said measurement is clearly available to the plaintiff, there is no necessary for reissuance of warrant to the Advocate Commissioner to measure the property again after scrapping the old report.
17. For the foregoing reasons, I am of the considered view that the Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, connected MPs are closed.
24.07.2014 Index:Yes/No nvsri To The District Munsif Court, Thiruvarur.
R.MALA, J .
nvsri C.R.P.(P.D)No.1856 of 2013 24.07.2014