In the High Court of Judicature at Madras
Dated: 24/02/2006
Coram
The Hon'ble Mr. Justice S.R.SINGHARAVELU
CRP.(P.D.) No.1162 of 2005
and
CMP.No.14300 of 2005 and VCMP.No.16795 of 2005
Chandra ..Petitioner
-Vs-
1. N.Reddappa Reddy
2. Thulasi
3. K.Sargunam ..Respondents
Civil Revision Petition filed under Article 227 of Constitution of
India, against the Order dated 12.08.2005 made in I.A.No.14146 of 2000 in
O.S.No.3736 of 2000 on the file of V Assistant Judge, City Civil Court,
Chennai.
!For Petitioner : Mr.T.R.Rajagopalan,Senior Counsel
for Mr.K.V.Ananthakrishnan
^For Respondents : Mr.A.Venkatesan for R1
No appearance for R2 and R3
:ORDER
First Defendant is the revision petitioner. Aggrieved over the order
dated 12.08.2005 in I.A.14146 of 2000 in O.S.No.3736 of 2000 on the file of V
Assistant Judge, City Civil Court, Chennai, in appointing an Advocate
Commissioner to note down the physical features of the suit property, namely,
plot No.21 and 22, Chockalingam Nagar Colony, Gopalapuram, Chennai-86, the
first defendant has filed this revision petition.
2. Admittedly, there was an earlier suit, which went up to Supreme
Court and finality reached in declaring the right of the defendants in the
well situated on the north-western side of the suit property with a right over
the area circumscribing the well up to a width of 25 feet.
3. The first respondent / plaintiff has preferred the present suit,
the effect of which as apprehended by defendants, may to some extent undo
their rights in the well found in the earlier decree.
4. The present plaint is for (i) permanent injunction restraining the
defendants from interfering with the plaintiff’s property in putting up gate,
compound wall, development of the plots, usage of plots in the suit property,
(ii) for declaration that clause 3 of Partition Deed dated 29.10.1906 relating
to drawing of water from the well in plot No.22 by using the irrigation method
of Yetram, etc., to do cultivation is not valid and cannot be enforced as it
is hereby prohibited in the City of Chennai in view of the prohibition of
cultivation in the City by Legislation ; and (iii) to struck off as per order
dated 11.07.2005 passed in I.A.No.13508 of 2004.
5. Learned counsel for the first respondent / plaintiff has submitted
that under the guise of exercising the right of defendants in the suit well
shown in the earlier decree, an attempt is made to enter into plot No.21 and
22 belonging to the plaintiff, where the remaining parties have no interest
and that is why the suit was filed.
6. Although an attempt was made that by virtue of a particular
enactment no irrigation could be made by the defendants from the suit well,
despite the existence of earlier decree, no such legislation was shown or
quoted before me.
7. However, we are now only at the point as to whether there is a
need for any appointment of Commissioner to note down the physical features of
the suit property namely, plot No.21 and 22. The first respondent/plaintiff
sought for such appointment only to show his case that there was an attempt
made by the revision petitioner/first defendant to encroach upon the first
respondent/plaintiff’s plots No.21 and 22, over which the revision petitioner
has no right.
8. That could be easily done by virtue of evidence. The report of
the Commissioner cannot support such contention; because noting down the
physical features by Commissioner may not be ipso facto taken that such
features were made after encroachment by the revision petitioner/first
defendant. For that purpose, independent evidence is required and that
evidence independent of the report of the Commissioner can establish the case
of the first respondent/ plaintiff. In that way, the report of the
Commissioner may not be serving the purpose of the first respondent/
plaintiff.
9. The next question that may arise is as to whether any prejudice is
caused to the revision petitioner upon appointment of Commissioner. In this
connection, learned Senior Counsel for the revision petitioner/first defendant
relied on the decision S.ANTHONIDOSS AND ANOTHER ..vs.. SABESTHIYAN AND
ANOTHER reported in 1996(1) CTC 472, wherein it was held that the question of
appointment of Commissioner does not depend upon merely whether any prejudice
will be caused to the other side or not. It was further held that there
should be sufficient basis justification as also an effective need and an
appointment of Commissioner cannot be sought for or obtained as a matter of
course and that too to achieve an ulterior object or motive.
10. Likewise, in an unreported judgment of this Court in C.R.P.No.18
5 of 2004, it was observed that Commissioner cannot be allowed to gather
evidence and while appointing a Commissioner, the number of earlier litigation
may have to be necessarily taken note of.
11. In this case also, there were earlier litigation, which went up
to the Apex Court declaring the rights of the parties and ultimately the right
of the defendants in the suit well adjoining plot No.21 and 22 was declared
with a right of pathway unconnected with plot No.21 and 22. In such an event,
appointment of Commissioner to note down the physical features is not required
inasmuch as independent of the same the first respondent/plaintiff would be
able to establish the averments made in the plaint about the encroachment made
by the defendants and their attempt as a case may be. Simply because it
causes no prejudice to the defendants, such order of appointment cannot be
sustained especially, in view of the fact that there are prior litigation
between the parties and unnecessary further litigation may also crop up.
Hence, the order passed by the court below is liable to be set aside.
12. For the reasons mentioned above, the revision petition is
allowed, setting aside the order passed by the court below dated 12.08.2005 in
I.A.No.14146 of 2000 in O.S.3736 of 2000. No costs. Consequently, connected
C.M.Ps.are closed.
Index: Yes.
Internet: Yes.
gl
To
The Registrar,
City Civil Court,
Madras.