This Civil Revision Petition is directed against the order dated 08.04.2011 passed in I.A.No.202 of 2011 in O.S.No.42 of 2011 on the file of the District Munsif Court, Mettur. The petitioner herein is the defendant in the suit.
2. The respondents filed the suit for permanent injunction restraining the petitioner, their men and followers from interfering with the peaceful possession and enjoyment of the suit property.
3. Pending suit, the respondents have filed I.A.No.202 of 2011 under Order 26, Rule 9 C.P.C. seeking to appoint an Advocate Commissioner to measure the petition mentioned property and note down the physical features of the suit property and to submit a report with the help of a qualified surveyor stating that from the date of purchase of the suit property, they were in enjoyment of the property. According to the respondents, on the east of their property, the petitioner's property situated and three years back, the petitioner had encroached upon a small portion on the eastern side of their property. The petitioner had also filed O.S.No.321 of 2010 for injunction as though respondents were interfering with their possession. Since the petitioner was trying to encroach upon more extent of land in the respondents' property, it is necessary to appoint an Advocate Commissioner to measure the suit property with the help of Surveyor and also to note down the physical features of the same.
4. Refuting the averments in the affidavit filed in support of the petition, the petitioner filed counter stating that he never encroached upon the respondents' property. Since the respondents were interfering with the property of the petitioner, he had filed the suit in O.S.No.321 of 2010, wherein the petitioner had filed an application seeking to appoint an Advocate Commissioner and the same was pending. It is stated that petition to appoint an Advocate Commissioner to measure the suit property was not maintainable in a suit for permanent injunction. The description of property has been wrongly given in the plaint and there was no bona fide in the petition and prayed for dismissal of the same.
5. Upon consideration of the rival submissions, the trial Court appointed Mr.N.Senthilkumar, Advocate as an Advocate Commissioner to inspect and measure the suit property with the help of Surveyor and the Village Administrative Officer and file a report. Assailing the same, the petitioner had filed this revision.
6. I heard Mr.P.Mani, learned counsel for the petitioner and Mr.T.Murugamanickam, learned counsel for the respondents and also perused the materials available on record.
7. The learned counsel for the petitioner submitted that the trial Court ought to have considered the fact that the suit has been filed for permanent injunction as if the respondents were in possession of the suit property and as such the trial Court ought not to have appointed an Advocate Commissioner to find out the encroachment or possession. The learned counsel would submit that the report of the Advocate Commissioner was in noway helpful in deciding the dispute involved in the suit. He would further submit that the respondents have filed the petition to collect evidence and therefore, the trial Court committed an error in appointing the Advocate Commissioner and the same warrants interference.
8. Per contra, the learned counsel for the respondents submitted that considering the nature of dispute involved in the suit, the trial Court rightly appointed Advocate Commissioner and there is no necessity to interfere with the same. He would contend that the implication of Order 26, Rule 10 C.P.C. cannot be lost sight of when it says that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record and that the trial Court was right in appointing the Advocate Commissioner. In support of his submission, the learned counsel relied upon the decision in Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam, rep. by its President Palanivel having its office at Vaiyappamalai, Tiruchengode Taluk.
9. It appears that there were encroachments in the suit property and in order to know the extent of encroachment and to amend the plaint seeking a relief of recovery of possession, the respondents have filed petition to appoint an Advocate Commissioner and the same will not amount to collection of evidence by the respondents as alleged by the petitioner.
10. The trial Court, in its order, recorded the submission of the learned counsel for the petitioner as right from the year 1981 the respondent had been in possession of the encroached portion of the suit property for more than the statutory period and he acquired title by way of adverse possession. From the submission of the learned counsel for the petitioner before the trial Court, it is seen that there were encroachments in the suit property.
11. In Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam, supra, this Court held as under:
5. The object of local investigation under O.26, R.9 of the Code cannot be belittled. Its object is to collect evident at the instance of the party who relies on the same and which evidence cannot be taken in court but could be taken only from its peculiar nature, on the spot. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner, in effet, is a projection of the court, appointed for a particular purpose. In this regard, the implication of O.26, R.10 cannot be lost sight of when it says that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. We are not very much concerned with the (sic) probative value of the report of the Commissioner. But the party has got a right to place evidence which he could require to substantiate his case before the court and of course, subject to the law of evidence and the Code, and it is the duty of the Court to receive such evidence unless there are other justifiable factors in law to decline to receive such evidence. The law of evidence enjoins upon the party to prove the fact which he relies on and in that sense, an obligation is cast upon the party and if he fails to discharge that obligation, adverse consequences will follow and he will have to face the repercussions of the same. This right of the party to adduce evidence gets adjudicated in the interlocutory proceedings under O.26, R.9. When there is a decline by the Court to issue the commission asked for to make local investigation, the purpose behind it being significant and in stated cases, imperative too, that order certainly disposes of the right claimed by the party to place the requisite evidence on his behalf. ....
12. As rightly held by the trial Court when the respondents have pleaded encroachment by the petitioner and both parties have not stated the extent of encroachment said to have been made by the petitioner in the suit property, in order to find out the extent of encroachment and also the dispute between the parties, it is necessary to appoint an Advocate Commissioner. The trial Court further observed that if the Advocate Commissioner measured the suit property, further encroachment into the remaining extent of the suit property can be prevented. Taking note of the nature of the dispute between the parties, the trial Court has rightly appointed the Advocate Commissioner. If the Advocate Commissioner visited the suit property and measured the same with the help of the Surveyor and the Village Administrative Officer, no prejudice would be caused to the petitioner. On the other hand, it would be very helpful to the trial Court to decide the lis pending between the parties. Therefore, I am of the view that there is no illegality and/or perversity in the order of the trial Court and the Civil Revision Petition is liable to be dismissed.
13. In the result,
(a) The Civil Revision Petition is dismissed, by confirming the order in I.A.No.202 of 2011 in O.S.No.42 of 2011, dated 08.04.2011 passed by the learned District Munsif, Mettur.
(b) The trial Court is directed to issue suitable direction to the Advocate Commissioner appointed by the trial Court as per the order dated 08.04.2011 and to file report within a period of one month. On filing of the report, the trial Court is directed to dispose of the suit within a period of two months, without giving any adjournment to either parties. Both the parties are hereby directed to cooperate for early disposal of the suit.
(c) No costs. Consequently, connected miscellaneous petition is closed.
17.02.2017 Note:Issue order copy on 30.08.2018 vs Index : Yes Internet : Yes To The District Munsif, Mettur.
M.V.MURALIDARAN, J.
vs Pre-delivery order made in C.R.P.(PD)No.1012 of 2012 and M.P.No.1 of 2012 17.02.2017