Madras High Court
V.Kamalam vs The Chairman on 27 August, 2014
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27.08.2014 CORAM: THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(MD)No.1326 of 2011 & M.P.(MD) No.1 of 2011 1.V.Kamalam 2.V.Manjula Gandhi .. Petitioners Vs. 1.The Chairman, Tamil Nadu Bhoomithana Board, Panagal Buildings, Chennai. 2.The District Collector, Dindigul District, Dindigul. 3.The Chairman, Tamil Nadu Slum Clearance Board, Chennai. 4.The Executive Engineer, Tamil Nadu Slum Clearance Board, Madurai Division, Madurai - 20. .. Respondents Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order, dated 15.03.2011, passed in I.A.No.99 of 2011 in O.S.No.95 of 2009 by the learned District Munsif, Oddanchatram. !For Petitioners : Mr.D.Venkatesh ^For Respondent Nos.1 &2: Mr.R.Anandraj Government Advocate For Respondent Nos.3 &4: Mr.P.Mahendran :ORDER
This civil revision petition has been filed to set aside the order, dated 15.03.2011, passed in I.A.No.99 of 2011 in O.S.No.95 of 2009, by the learned District Munsif, Oddanchatram.
2.The petitioners are the plaintiffs, whereas the respondents are the defendants in the suit in O.S.No.95 of 2009 on the file of District Munsif Court, Oddanchatram.
3.The petitioners filed the suit for declaration and injunction of the suit property. Originally, the suit property was belonged to one K.Karuthappa Gounder. He gifted the land to the first respondent. According to the petitioners, even after the gift deed given by K.Karuthappa Gounder to the first respondent, the possession was not given to the first respondent. During the life time of K.Karuthappa Gounder, he was in possession and enjoyment of the suit property by cultivating the same. After his death, his son Vadivelan was in possession and enjoyment of the suit property. The petitioners are the wife and daughter of the said Vadivelan. After the death of Vadivelan, the petitioners are in possession and enjoyment of the suit property by cultivating the same. The first respondent tried to interfere with the possession of the petitioners. Therefore, the petitioners filed the suit for declaration and injunction. Subsequently, the respondents 2 to 4 were impleaded as party defendants. According to the first respondent, the suit property was transferred to the respondents 3 and 4 for construction of 552 tenements to be allotted to house-less poor people. The first respondent filed written statement stating that the patta has been transferred in favour of the respondents. Based on the pleadings, after framing issues, the trial was commenced. The petitioners have let in evidence, at that stage, they have filed the application for appointment of advocate commissioner to inspect the suit property along with the Village Administrative Officer to file a report as to whether the suit property is fit for cultivation. The appointment of advocate commissioner to note down the nature of the property is necessary, as they are cultivating the suit property while the respondents stated that the said suit property is not fit for cultivation. The first respondent field counter affidavit opposing the same. The learned Judge considering the materials on record and pleadings, dismissed the application for appointment of advocate commissioner. Against the order of dismissal, the present civil revision petition is filed.
4.Heard Mr.D.Venkatesh, learned counsel appearing for the revision petitioners, Mr.R.Anandraj, learned Government Advocate appearing for the respondents 1 and 2 and Mr.P.Mahendran, learned Standing Counsel appearing for the respondents 3 and 4.
5.The learned counsel for the petitioners, the learned Government Advocate appearing for the respondents 1 and 2 and the learned Standing Counsel for the respondents 3 and 4 reiterated the averments made in the affidavit and in the counter affidavit.
6.The learned counsel for the petitioners argued that they are in possession and cultivating the land even after the land being gifted to the first respondent. The original owner K.Karuthappa Gounder and his son are in possession and enjoyment of the suit property, after that the petitioners are in possession and cultivating the land. Even after the land being gifted to the first respondent, possession was not given to the first respondent. As there is dispute with regard to the nature of land, the appointment of advocate commissioner is necessary.
7.On the other hand, the learned Government Advocate appearing for the respondents 1 and 2 and the learned Standing Counsel appearing for the respondents 3 and 4 vehemently contended that the application for appointment of advocate commissioner, is filed to drag on the proceedings and to fill up the lacunae in the evidence. The petitioners could very well prove the nature of the suit property by filing chitta and adangal. The application is belated one. Therefore, it is devoid of merits.
8.In support of his contention, the learned Standing Counsel for the respondents 3 and 4 relied on the following Judgements:
(i) Chandrasekaran and Others v. V.Doss Naidu [2006 (2) LW 159], wherein in paragraph Nos.18 and 19 it has been held as follows:-
"18.Advocate Commissioner could be appointed only when the Court is satisfied that on the materials available on record, the party is not able to produce the desired evidence, the Court may assist the party to appoint the Advocate Commissioner to obtain the evidence. If really, the Defendants are in possession of the Suit Property, the possession could be proved by producing House Tax Receipts, Adangal and such other desired oral evidence. When the concurrent findings in the earlier litigation in O.S. No. 6 of 1972 and A.S. No. 164 of 1977 are against the Defendants, it would not be appropriate to Appoint the Advocate Commissioner to note down the existence of the house trees, so as to bring out the possession of the Defendants. In the facts and circumstances of the case, particularly in the light of the earlier Judgment in O.S. No. 6 of 1972 and A.S. No. 164 of 1977, there cannot be mechanical and indiscriminate appointment of Advocate Commissioner. The contention that the Defendants would pay the remuneration and that the Plaintiff may not be prejudiced by Appointment of Advocate Commissioner has no force.
19.Apart from seeking Appointment of Advocate Commissioner to note down the physical features of the Suit Property in S.No. 8/2, Application has been filed to note down the physical features of the adjacent property of the Defendants property on the Northern Side in S.No. 8/1 also. Strong objection has been raised by the Respondent / Plaintiff on the Appointment of Advocate Commissioner to note down the physical features of the adjacent property of the Defendants. Learned counsel for the Revision Petitioners / Defendants has submitted that the Commissioner may be appointed to make local inspection (for the purpose of elucidating the matter in dispute) and contended that when the contention of the Defendants is that they are in possession of the Northern Side of the Suit Property along with their property on the Northern Side in S.No. 8/1, that aspect is to be elucidated by Appointment of Advocate Commissioner and the Lower Court erred in declining to appoint the Commissioner. This contention of the learned counsel for the Revision Petitioners does not merit acceptance. Possession of the Defendants in S.No. 8/1 is a matter of evidence. Power is conferred on the Court to appoint Commissioner to make local inspection not to collect evidence; but only to obtain evidence, which is a peculiar nature which could be obtained only on spot inspection. Possession of the Defendants in S.No. 8/1 could be well proved by adducing appropriate evidence. In that view of the matter also, the order of the Lower Court declining to appoint Advocate Commissioner is to be confirmed."
(ii) Chinnathambi and Others v. Anjalai [2006 (4) LW 516], wherein in paragraph No.8, it has been held as follows:-
"8.In the instant case, the suit is for permanent injunction and admittedly, interim injunction has been granted on 19.11.2003 and nearly after 1 year and 7 months, the petitioners have taken out an application for appointment of an Advocate Commissioner. Even as per the averments made in the petition, the respondent/plaintiff has stated that the petitioners/defendants are making arrangements to obliterate her cart-track or land and also proposed to encroach a further extent of 0.09 cents. Whereas, there is no averment in the plaint that there is an encroachment of land.
It is a well accepted principle of law that an Advocate Commissioner should not be appointed to find out the possession of the property, which has to be adjudicated only by oral and documentary evidence. Under such circumstances, the order of the Lower Court suffers from material irregularity and it is not in accordance with the principles laid down in the above decisions. ...."
(iii)Meenakshi v. Vennila and Another [2009 (1) MLJ 516], wherein in paragraph No.9, it has been held as follows:-
"9.It is true that Order XXVI Rule 9 of C.P.C. empowers the court to appoint commissioner to make local investigation as it finds fit and proper based on the facts and circumstances of the case. At this stage, it is pertinent to point out that it is not the aim of Order XXVI Rule 9 of C.P.C. to assist a litigant to collect evidence, where the litigant can get evidence himself. In the instant case, the suit has been filed only for permanent injunction and as such in regard to the factum of possession, this Court opines that the lower court alone can gather evidence through the parties to the litigation and therefore, the same cannot be entrusted to the Advocate Commissioner to gather evidence and in that view of the matter, the Civil Revision Petition fails and the same is hereby dismissed in the interest of Justice."
(iv)G.J.Kumari Manju v. Sukumaran Nair [2009 (5) LW 826], wherein in paragraph No.4, it has been held as follows:-
"4.The learned counsel for the respondent Mr.V.M.Balamohan referred the Judgement reported in 2009 (2) MLJ 769, wherein this Court has categorically held that in a suit for specific performance of a sale agreement, the suit is to be decided on the issues, i.e., whether the sale agreement is validly executed and the plaintiff is ready and willing to perform his part of the contract. That being so, the application taken out by the petitioner/defendant to value the property is not relevant and germane to the issues to be decided in those suits and the application is not maintainable. The above said Judgement is applicable to the facts of this case and following the judgement I hold that the revision petition filed by the revision petitioner for appointment of Advocate Commissioner is not maintainable and the lower Court has rightly dismissed the application. Therefore, I do not find any infirmity in the order passed by the lower court and the revision petition is liable to be dismissed."
9.I have carefully considered the materials on record and the arguments of the learned counsel for the petitioners as well as the respondents.
10.From the records, it is seen that the petitioners are filed the application after commencement of the trial. While the evidence is being let in by the petitioners, they have come out with the present application. The petitioners are trying to gather evidence to support their case. As rightly pointed out by the learned counsel appearing for the respondents, the nature of the property can be proved by Chitta and Adangal. Therefore, I hold that the learned Judge has considered all the materials in a proper perspective and dismissed the application. Therefore, there is no infirmity or illegality in the order, dated 15.03.2011, passed in I.A.No.99 of 2011 in O.S.No.95 of 2009 by the learned District Munsif, Oddanchatram. Hence, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Considering the nature of the suit, the learned District Munsif, Oddanchatram, is directed to dispose of the suit in O.S.No.95 of 2009, within three months from the date of receipt of a copy of this order.
27.08.2014 Index :Yes Internet :Yes smn2 To
1.The District Munsif, Oddanchatram.
2.The Chairman, Tamil Nadu Bhoomithana Board, Panagal Buildings, Chennai.
3.The District Collector, Dindigul District, Dindigul.
4.The Chairman, Tamil Nadu Slum Clearance Board, Chennai.
5.The Executive Engineer, Tamil Nadu Slum Clearance Board, Madurai Division, Madurai - 20.
V.M.VELUMANI,J.
smn2 C.R.P.(MD)No.1326 of 2011 & M.P.(MD) No.1 of 2011 27.08.2014