IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07..07..2009 CORAM THE HONOURABLE MR. JUSTICE S. PALANIVELU C.R.P. (P.D.) No.2813 of 2007 and M.P.No.1 of 2007 1.Banu @ Banumathi 2.Eleumalai 3.Mani ... Petitioner Vs Muniammal ... Respondent Civil Revision Petition filed under Article 227 of Constitution of India against the Order dated 14.6.2007 passed in I.A.No.25 of 2007 in O.S.No.472 of 2005 on the file Additional District Munsif Court, Tiruvannamalai. For Petitioner : Mr. Rajan For Respondents : Mr. Ramakrishnan O R D E R
In the application filed by the petitioner/third respondent in the Original Suit, it is alleged that the defendants trespassed upon the suit property on 9.8.2005 and put up thatched house. But these defendant have constructed the thatched house even in 1995, which is a old house, hence the suit property has to be inspected by an Advocate Commissioner and to ascertain the age of the thatched house. Hence an Advocate Commissioner may be appointed.
2. In the counter filed by the plaintiffs it is stated that only to drag on the proceedings and to harass this plaintiff, the petition has been filed. The plaintiff has proved that one Munia Gounder and his sons alone had been in possession for over 25 years. Since the defendants encroached the property, the suit has been filed. The recording of oral evidence was over and when the case was posted for hearing the arguments of the defendants, this petition has been filed, which is not sustainable. Hence the petition has to be dismissed.
3. Learned Additional District Munsif, Thiruvannamalai, has dismissed the application by observing that the age of the building could not be ascertained by the Advocate Commissioner and the same has to be established by the defendants by adducing sufficient evidence.
4. Mr.G. Rajan, learned counsel for the petitioner in support of his contention would rely upon a decision of this Court in 2002 (2) CTC 199 [Saraswathy v. Viswanathan] wherein this court has taken a view that an Advocate Commissioner can be appointed to note down the age of the building. The operative portion of the judgment goes thus:-
“In view of the discussion above, the Civil Revision Petition is allowed. The lower Court shall appoint an Advocate Commissioner for the purpose set out in the petition in support of the application for appointment of an Advocate Commissioner. The Advocate Commissioner shall measure the properties of both the parties and also note down whether there are projections of the sunshades over the plaintiffs’ School Buildings on the defendant’s property. The Commissioner shall also note down the age of the buildings of the plaintiffs and submit his report.”
5. He also garnered support from another decision of this Court in 1985 (1) MLJ 380 [Ponnusamy Pandaram v. Salem Vaiyappamalai Jangamar Sangam rep. By its President Palanivel], in which it is held that regarding the controversy as to whether constructions being put up by a defendant are within his own land or whether they have encroached into the lands of the plaintiff, a local investigation is the best way to find out the position and the party converting to place the evidence before the Court through local investigation by the commissioner cannot be shut out of that right.
6. Repelling the contentions of the learned counsel for the petitioner, Mr. J. Ramakrishnan, learned counsel for the respondent would submit that the age of the thatched building could not be ascertained by an Advocate Commissioner and the defendant in the suit have to be directed to adduce sufficient evidence and they could not be permitted to collect evidence under the guise of praying for appointment of Advocate Commissioner. He cites a decision of this Court in 2006 (2) L.W. 159 [Chandrasekaran and 6 others v. V. Doss Naidu] wherein this Court after discussing the merits of the case, confirmed the order of the court below which dismissed the application seeking appointment of Commissioner by observing that commissioner cannot note the age of the buildings and this Court dismissed the revision petition preferred by a defeated party who sought for appointment of an Advocate Commissioner before the District Munsif Court to inspect and note down the physical features with plan, trees, age of the building etc.,
7. On two earlier occasions, this Court has taken different views as to the appointment of an Advocate Commissioner to ascertain the age of the construction available in the suit properties. In order to lay down a definite proposition on this aspect, I deem it necessary that it has to be referred to a Larger Bench for decision to be uniformly followed by the Courts.
8. Hence, the registry is directed to place the matter before My Lord the Chief Justice for referring the same to a Larger Bench for decision.
ggs