The respondent / plaintiff has laid the suit against the petitioner / defendant for declaration that he is entitled to the plaint second schedule property and for the consequential relief of recovery of possession of the same by removing the construction put up thereon and for further reliefs.
2. A reading of the plaint prima facie would go to show that even, according to the plaintiff, the second schedule of the suit properties forms part of the first schedule of the suit properties and according to the plaintiff, during his absence, the defendant, without having any right, had removed the boundary stones installed between the properties of the plaintiff and the defendant and thereby encroached the second schedule of the suit properties and put up a construction thereon and hence, according to the plaintiff, he has been necessitated to lay the suit against the defendant for the appropriate reliefs.
3. It is found that at the instance of the plaintiff in I.A.No.2133 of 2011, the Court below was pleased to appoint an Advocate Commissioner to inspect and measure the plaint schedule property with the help of the Taluk Surveyor on the basis of the revenue records and accordingly, it is further seen that the Advocate Commissioner, so nominated, had also inspected the concerned property and filed his report and plan. Inasmuch as the plaintiff has not put forth any objection to the report and plan of the Advocate Commissioner, it is found that the report and plan of the Advocate Commissioner has formed part of the record.
4. Meanwhile, it is found that the defendant also filed a written statement stoutly resisting the claim of the plaintiff to the entitlement of the relief sought for in the plaint and also alleged in the written statement that as per the report and plan of the Advocate Commissioner, the plaintiff has no entitlement to any property on the western side and that apart, the plaintiff himself has admitted that the defendant's property is the western boundary of the first schedule property of the plaint.
5. It is further seen that subsequently, the plaintiff has moved the Court below seeking for the appointment of an Advocate Commissioner again to inspect the plaint second schedule property with the help of the Surveyor alleging that the Commissioner already appointed had not identified and located the suit property with reference to the survey number and also the Commissioner had failed to note as to in which survey number, the plaint second schedule property is located and also not mentioned anything about the construction put up in the plaint second schedule property and inasmuch as the report and plan of the Commissioner suffers from various infirmities as above stated and the said report and plan would not be adequate to decide the issues involved in the matter and inasmuch as the relief sought for by the plaintiff is only with reference to the plaint second schedule property, according to the plaintiff, the Court below should appoint the same Commissioner again to revisit the property and note down its physical features as claimed in the application. The said application was resisted by the defendant contending that inasmuch as the plaintiff's case is that the plaint second schedule property forms part of the plaint first schedule property and accordingly, sought for the appointment of the Commissioner to inspect the plaint first schedule property in I.A.No.2133 of 2011 and accordingly, the Commissioner, so nominated, had also inspected the property concerned and filed his report and plan and when to the same, the plaintiff has not preferred any objection whatsoever, the plaintiff cannot be allowed to complain about the report and plan of the Commissioner without any basis and when it is found that the Commissioner has noted all the physical features of the property concerned as directed by the Court below and when simply because the report and plan of the Advocate Commissioner does not suit the case of the plaintiff that would not be the basis to seek for the reappointment of the Commission again to inspect the suit property and the allegation that the Commissioner had not noted down the plaint schedule properties with reference to the survey number and not identified the plaint second schedule property as to in which survey number the same is located and also not noted the construction put up in the plaint second schedule property etc., are all false and misleading and only to drag on the proceedings, the present application has been preferred and hence, the same is liable to be dismissed.
6. The Court below on a consideration of the rival contentions put forth by the respective parties, holding that the Commissioner has not given any report as to the plaint second schedule property as complained by the plaintiff accordingly, acceded to the request of the plaintiff and appointed the Commissioner again for inspecting the property. Impugning the same, the present civil revision petition has been preferred.
7. As adverted above, to the report and plan of the Advocate Commissioner, who had inspected the suit property pursuant to the order passed in I.A.No.2133 of 2011, admittedly, the plaintiff has not preferred any objection. If really, according to the plaintiff, the Commissioner has failed to note down the plaint second schedule property with reference to the survey number in which it is located or with reference to the failure on his part to note down the construction put up thereon etc., the plaintiff would have preferred appropriate objections to the report and plan of the Advocate Commissioner. But, it has not been done by the plaintiff. To the same also, no acceptable cause is adduced by the plaintiff. That apart, even assuming for the sake of arguments that the Commissioner in his report had not adequately completed the task as directed by the Court below, the proper course that would be available to the plaintiff is to examine the Commissioner with the permission of the Court and thereby cull out the evidence as regards the infirmities and errors committed by the Commissioner at the time of inspection of the suit property while noting down the physical features thereon. When specific provisions have been outlined in the Code of Civil Procedure with reference to the same under Order XXVI Rules 9 and 10, it is found that the plaintiff had bypassed the same without any basis and also without filing any objection to the report and plan of the Commissioner, has moved another application seeking for the reappointment of the same Commission to again visit the suit properties for the reasons mentioned in the application. As rightly argued by the learned counsel for the defendant, if the plaintiff is very particular about the noting down of the physical features of the plaint second schedule property and if, according to the plaintiff, the Commissioner had not cared to note down of the same at the time of the inspection, nothing prevented the plaintiff from filing necessary memo / instruction to the Commissioner with reference to the same and invite his attention to note down the aspects now alleged by the plaintiff as not having been complied with by the Commissioner during inspection. This has also not been followed by the plaintiff. If such a request had been made by the plaintiff and in case, the Commissioner had not acceded to the same, as rightly argued by the learned counsel for the defendant, the plaintiff would have moved the Court concerned for obtaining necessary directions with reference to the same and impressed upon the Court and seek necessary direction to the Commissioner to note down the said aspect also in his report and plan. The plaintiff has not endeavoured to resort to the above course for the reasons best known to him. That apart, when it is the specific case of the plaintiff that the plaint second schedule property forms part of the plaint first schedule property and when the Commissioner earlier appointed has been directed to note down the physical features of the plaint first schedule property, which encompasses the plaint second schedule property also as per the case of the plaintiff, it is seen that the present complaint of the plaintiff that the Commissioner has not noted down the plaint second schedule property as expected of by the plaintiff cannot be countenanced in any manner. Equally, the approach of the Court below in simply reappointing the same Commission again to revisit the suit properties by accepting the case of the plaintiff, also when the Court below has failed to note that the plaint second schedule property forms part of the first schedule property and in such view of the matter and when the Commissioner had also already inspected the first schedule property and filed his report and plan and when to the same the plaintiff has not raised any objection, the Court below has committed a serious flaw and mistake in again reappointing the Commission to inspect the suit property without resorting to the procedure contemplated under Order XXVI Rules 9 and 10 C.P.C. This attitude of the plaintiff in again and again seeking for the appointment of the Commission, in my considered opinion, as also urged by the learned counsel for the defendant, is nothing but an attempt to delay the proceedings endlessly with a view to cause undue hardship to the defendant. This attitude of the plaintiff cannot be encouraged.
8. In support of his contentions, the learned counsel for the defendant placed reliance upon the decisions of the High Court dated 22.07.2011 in C.R.P.No.2317 of 2009 [M/s.Vestas RRB (India) Limited vs. Anulatha], dated 06.01.2017 in C.R.P.PD.No.198 of 2014 [K.Sivakumar vs. Marappa Gounder and others] dated 16.06.2017 in C.R.P. PD) No.1880 of 2017 [P.Natarjan vs. Guruswamy Gounder and another] and dated 19.07.2017 in C.R.P.(PD) (MD) No.1342 of 2017 [Karunakaran and another vs. Akkammal]. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
9. In the light of the above discussions, the impugned fair and decreetal orders, dated 16.02.2017, passed in I.A.No.937 of 2016 in O.S.No.595 of 2011, on the file of the Principal District Munsif Court, Tirunelveli, cannot be sustained in the eyes of law and accordingly, they are set aside. Resultanlty, the civil revision petition is allowed with costs. Consequently, connected civil miscellaneous petition is closed.
To:
The Principal District Munsif, Tirunelveli.
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