BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31/10/2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(PD)(MD).No.138 of 2008 and M.P.(MD).No.1 of 2008 1)R.Sudalaimuthu ... Petitioner Vs. 1)Ponnuchamy Ambalam 2)Thiruppathy 3)Thangapandi ... Respondents Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 11.01.2008 passed in I.A.No.935 of 2007 in O.S.No.475 of 2007 by the First Additional Subordinate Judge, Madurai. !For Petitioner ... Mr.T.R.Jeyapalam ^For Respondents ... Mr.M.Vallinayagam **** :ORDER
The petitioner is the plaintiff, who filed a suit in O.S.No.475 of 2007 on
the file of First Additional Subordinate Court, Madurai for permanent
injunction. Pending trial of the case, the defendants filed an application in
I.A.No.935 of 2007 under Order 26 Rule 9 and Section 151 CPC for appointment of
an Advocate Commissioner to inspect the suit property, to note down the nature
of the suit land and other physical features thereon and file his report.
2. In the affidavit, it is stated that the first petitioner / first
defendant is the cultivating tenant in a portion of the land and that they have
been in possession for over 75 years. It is further stated that the nature of
the suit property has to be established to substantiate their contentions and
that it was originally a nanja land at the time of institution of suit also be
shown. It is further alleged that after obtaining ex parte ad-interim
injunction, the plaintiff has collected mud and quarry materials and put the
same in the suit land and thereby, made the suit field unfit for cultivation.
3. In the counter filed by the plaintiff, it is fairly admitted that he
has collected 300 lorry loads of mud and quarry waste and dumped them on the
land in question. As such, there is no need for local inspection to find out
the nature of the land.
4. The learned First Additional Sub-judge, Madurai, by means of his
order dated 11.01.2008 directed appointment of an Advocate Commissioner and to
file his report with plan. He has observed that in order to find out the
alteration of the suit property into house sites, stated to have been done, in
what manner and from what point of time the said activities is going on, have to
be seen, so as to arrive at a final decision in this case.
5. Learned counsel for the petitioner Mr.T.R.Jeyapalam would submit
that there is no necessity for appointment of Advocate Commissioner inasmuch as
there is no dispute from the side of the plaintiff with regard to the location
of the property, measurement of the property and the nature of the suit land.
It is his further contention that even the plaintiff in the counter has fairly
admitted that he has dumped 300 lorry loads of mud and quarry materials in the
suit land and the even if the Advocate Commissioner is appointed, no useful
purpose would be served. He also submits that the possession of the property
could not also be found out by an Advocate Commissioner.
6. Learned counsel for the petitioner would draw attention of this Court
reported in 2006 (5) CTC 178, T.K.Krishnamurthy Vs. Tamil Nadu Water and Drinage
Board and others, where, this Court has decided that the report of the Advocate
Commissioner can never be the basis for deciding the Suit as Commissioner should
not be appointed to gather evidence to prove the case of the parties. Further,
he cited a decision in the case of Chandrasekaran & 6 Others Vs. V.Doss Naidu
reported in 2006 (2) L.W. 159, wherein, it is observed that the power is
conferred on the Court to appoint Commissioner to make local inspection and not
to collect evidence; but only to obtain evidence. He also brought to the notice
of this Court a decision reported in 2002 (3) Law Weekly 707, Perumal and others
Vs. Raji Gounder and others in which this Court has held that when the identity
of the property is not in dispute, appointment of Advocate Commissioner is
totally unwarranted. Added further, a learned Judge of this Court in a decision
reported in 2000-3-L.W.787, R.Satyanarayana Rao and 3 others Vs. M.K.Manoharan @
K.Manoharan and another has held that when the identity of the matter is not a
matter in issue, and when the suit is also not one filed for recovery of
property, there is no necessity to issue a Commission.
7. As far as the facts of the case in hand are concerned, there is no
dispute with regard to the identity and measurement of the property. However,
the defendants desired to elucidate before the Court as to the nature of the
property as on today. It is true that the plaintiff has admitted in his counter
that he has gathered mud and quarry materials in the suit property. However,
the Court could not find whether any further development has been made by
dumping the mud and quarry on the property, so as to alter the character of the
property. It is seen that the order was passed as early as on 11.01.2008 and
nine months are over by this time. It is pleaded by the defendants that the
suit property is a cultivable land and in order to adjudicate the rights of the
parties, the present nature of the property should be shown to the Court at the
time of trial.
8. Even though there is an admission on the part the plaintiff with
regard to the gathering of the materials in the suit land, for the purpose of
finding out the portion, which is said to have been altered has to be seen in
this case. As a result of that, it will be helpful for the Court to arrive at a
final decision in this case. While the balance of convenience is considered,
the plaintiff will not in any way be prejudiced by the appointment of the
Advocate Commissioner and the inspection of the Advocate Commissioner may serve
purposes of both the parties. The Advocate Commissioner may not find out at what
point of time the materials were collected, but he can say to what extent the
property has been altered enabling the Court to know the present plight of the
land. This would include the noting of physical features of the property also.
9. In view of the fore-going reasons, this Court is of the opinion that
there is no impediment for the appointment of the Advocate Commissioner and the
order passed by the Court below does not warrant any interference from this
Court, which deserves to be confirmed and accordingly, it is confirmed.
10. In fine, the civil revision petition is dismissed. Consequently,
connected M.P. is closed. No costs.
ssm
To
The First Additional Subordinate Judge,
Madurai.