IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.09.2006 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.R.P.(PD) No.1721 OF 2005 and C.M.P. No.19371 OF 2005 1. Chinnathambi 2. Mani @ Sellammal 3. Selvaraj Petitioners vs. Anjalai Respondent Prayer : Civil Revision Petition filed under Article 227 of the Constitution of India praying to set aside the fair and final order dated 11.08.2005 made in I.A.No.1736 of 2004 made in O.S.No.463 of 2004 on the file of the District Munsif Court, Attur. For Petitioners : Mr.T.Murugamanickam For Respondent : Mr.S.Mani O R D E R
Civil Revision Petition is directed against the order appointing an Advocate Commissioner.
2. The brief facts leading to the filing of the Civil Revision Petition are as follows :
(i) The respondent/plaintiff has filed the suit for permanent injunction. Pending disposal of the suit, interim injunction has been granted. According to the plaintiff, she is the absolute owner of the property by way of registered Sale Deed and that she is in actual possession and enjoyment of the suit schedule properties by paying the Kists and penal tax to the Government regularly. The petitioners/defendants have own lands on the western side of the suit property. On 19.12.1992, the petitioners/defendants attempted to obliterate the cart-track running on the northern side of the lands of the respondent/plaintiff.
(ii) In S.No.29/5, out of total extent of 2 acres 8 cents, 0.07 cents were given to one deceased, by name, Karupayee, wife of Chinnathambi,(the first petitioner herein), as per the exchange in suit No.455/92. The petitioners/defendants were in possession and enjoyment of 0.15 cents of land and they have a field thatched house and thrashing floor. Subsequently, the petitioners/defendants have encroached the pathway portion to an extent of 0.03 cents, which was earlier used by the respondent/plaintiff. The petitioners/defendants are in possession of 0.25 cents and the rest of the land measuring about 1.83 acres are in possession of the respondent/plaintiff. The petitioners/defendants made arrangements to obliterate the land of the respondent/plaintiff by enlarging the properties and proposed to encroach a further extent of 0.09 cents. The respondent/plaintiff has filed an application seeking for appointment of an Advocate Commissioner to note down the physical features of the suit properties described in the schedule and to measure the same with the help of a qualified Surveyor, according to the FMB plan and file his report.
(iii) The petitioners/defendants by filing a counter affidavit resisted the application and contended that the actual disputed property is in S.No.29/5, which is a Government Poramboke land. The respondent is not in possession and enjoyment of the above said land and that there are no revenue records in the name of the respondent. The revenue records have been tampered with, unlawfully by the husband of the respondent in respect of S.No.29/5, with the support of the then Village Administrative Officer. There is no dispute with respect to the cart-track.
(iv) The petitioner further contended that the actual dispute is only with respect to the extent of the possession in S.No.29/5 and that there is no dispute with respect to the identification of the property. There is no obliteration of the land or cart-track as alleged by the respondent/plaintiff and the contention that there is an attempt to encroach upon 0.09 cents of land is also false. The petition to find out the possession of the properties in a suit for permanent injunction is not maintainable. The petitioner further contended that though, interim injunction has been granted on 19.11.2003 and the matter was posted to various dates for hearing, the respondent/plaintiff was not inclined to get along with the injunction application, but only to protract the hearing of the petition, she has chosen to file this petition for appointment of an Advocate Commissioner. Therefore, the petitioners/defendants prayed for dismissal of the petition.
(iv) The Court below after considering the rival submissions, appointed an Advocate Commissioner to note down the physical features with the help of a Surveyor and to file his report. Aggrieved by the order, the present Revision Petition is filed.
3. Learned counsel for petitioners/defendants submitted that the Lower Court ought not to have appointed an Advocate Commissioner for the purpose of finding out the extent in which the disputed parties are in possession, particularly in a suit for permanent injunction. Inviting my attention to paragraph No.7 of the order, learned counsel for petitioner submitted that the Court below has accepted the legal position that an Advocate Commissioner should not be appointed to find out who is in possession of the land, but at the same time, in the latter portion of the order, for the very same purpose, ordered appointment of an Advocate Commissioner, which is self-contradictory. He further submitted that to find out who is in possession of the property is essentially the function of the Court, that an Advocate Commissioner should not be appointed. In this context, it is relevant to extract the relevant portion of the order. Paragraph 7 reads as follows :
VERNCULAR TAMIL PORTION DELETED
4. Placing reliance on the decisions reported in G.Ramadoss Naidu vs. K.Ramakrishna Naidu (1987 (1) TNLJ 266) and Malaya Gounder and others vs. Palanisamy and others (1995 (1) MLJ 626), learned counsel for petitioners submitted that the Advocate Commissioner’s report alone should not be the conclusive evidence of possession, as no Commissioner could ever be called upon to find out as to who is in possession of a particular property.
5. Per contra, learned counsel for the respondent/plaintiff submitted that the lands have to be measured with the help of an Advocate Commissioner to find out the physical features and also the extent of encroachment made by petitioners/defendants. The exact measurements with the plan will be useful at the time of enquiry and for proper adjudication of the dispute. He further submitted that there is no material irregularity in the order of the Lower Court and prayed that the order should be sustained.
6. We shall now consider some of the decisions rendered by various Courts in this regard.
(i) In a decision reported in Puttappa vs. Ramappa (AIR 1996 Karnataka 257), in paragraph 3, the Court held as follows :
“3. a Commissioner cannot be appointed to find out as to who is in possession of the property. Under Order 26, C.P.C., a Commissioner can be appointed to make local investigation to investigate the facts or other materials which are found in the property and to make a report in regard to that matter to the Court. In a suit for injunction the question as to who is in possession of the property, is a matter to be decided by the Court on the basis of the evidence, either oral or documentary, to be adduced by the parties. That function cannot be delegated to a Commissioner who cannot find out as to who is in possession of the property. Accordingly, the Lower Court was right in rejecting the application.
(ii) In a decision reported in Union of India and another vs. M/s.Kripal Industries (AIR 1998 Rajasthan 224), the Court in paragraph 18 has held as follows :
18. power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist party to collect evidence where it can get evidence itself. In the case on hand the written statement has already been filed, therefore, the disputed question of fact can be adjudicated upon by the Court after framing the issues and recording the evidence of the parties. For such purpose assistance of Commissioner is neither necessary nor justified.
(iii) In a decision reported in Penta Urmila and others vs. Karukola Kumarasamy (2005 (2) ALD 130), the Court in paragraph 6 has held as follows:
6. In a suit for permanent injunction, the vital and important issue is whether the plaintiffs are in possession of the suit schedule land and whether there was attempt by the defendant/s to interfere with such possession of plaintiffs. The burden is entirely on the plaintiffs to bring convincing and cogent evidence on record and for so doing, it is not permissible for them to invoke Order XXVI Rule 9, which is intended for difference purpose. Further, if at this stage, Advocate Commissioner files a report, as directed by Appellate Court with the assistance of the Mandal Surveyor it would certainly amount to introducing additional evidence which is ordinarily not permissible unless proper application is made under Order XLI Rule 27 satisfying the conditions therein.
7. In a matter relating to investigation in to the disputed question of fact of possession, the power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence, where the party can collect evidence by himself. Thus in a case, where the claim of the plaintiff that, she is in possession of the disputed property is denied by the defendants by filing written statement, the disputed question of fact can be adjudicated upon by the Court, after framing of issues and recording evidence of the parties.
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.
In the result, the order of the Lower Court is set aside. The Civil Revision Petition is allowed. No costs. Consequently, connected C.M.P.No.19371 of 2005 is closed.
abe
To
The District Munsif Judge,
Attur.
[PRV/8041]