This is a plaintiff's revision.
2. Late Krishnan, while alive purchased the property comprised in S.No.370/2E1 measuring about 5 cents situate in Charless Nagar, Pattabiram.
D.P.R.M.Street, Chennai, from one Kumaran, first defendant who sold the said property out of 20 cents owned by him. Now Krishnan and Kumaran are no more. But, they have left this world after leaving their Legal heirs. Krishnan's son Govindan filed the suit in O.S.No.703 of 2004 seeking injunction as against first defendant, now legal heirs of late Kumaran/defendants 2 to 5 one contesting the suit. Govindan filed the suit for injunction also for the benefit of his other legal heirs. The defendants contends that besides his 5 cents, the plaintiff is in enjoyment of 1 ½ cents to which the plaintiff is not having any title.
3. Issues were framed and the suit was put on trial. The Plaintiff deposed himself as P.W.1. He was cross examined.
4. At this juncture, the Plaintiff filed I.A.No.1065 of 2012, to appoint an Advocte commissioner to measure the suit property with the assistance of a Taluk Surveyor.
5. The defendants opposed the said application on the ground that the plaintiff tries to collect evidence through an Advocate/Commissioner which amounts to proving his case through him instead of proving his case with relevant evidence thus dismissed the commission petition. That is how this revision by the plaintiff.
6. The learned counsel for the revision petitioner would contend that the measuring of the property more particularly of the defendant would become more relevant because that will settle the issue between both. Thus, there is no question of collecting evidence. The Trial Court has not viewed the matter in proper prespective. The impugned order is flawed.
7. On the other hand, the learned counsel for the respondent reiterated the very same contentions which were placed before the Trial Court. Further, the learned counsel for the respondent contended that the plaintiff is in the job of collecting materials to support a losing legal battle.
8. I have given my anxious consideration to the rival submissions and perused the Impugned Order and the materials on record.
9. To an application for an appointment of an Advocate/Commissioner often quoted principle is that the Commissioner should not be appointed to collect the evidence. This anxion century old. But application of this archaic dogmas is also based on the facts and circumstances of each case. In the presence of title deeds let us pursue a pragmalism. Instead of principle, practice is more important. Parties do not want principles, they want solutions to their problems. They are bored with doctrines and principles.
10. Now, here in this case, the plaintiff has title and a property measuring 5 cents as described in the Sale Deed which is suit Document No.1 which has been executed by predecessor-in-title by defendants 2 to 6 to the predecessor-in-title of the plaintiff and his other sharers. The dispute centres around 1 ½ cents in the southern side of the defendant's property. The cotention of the defendant is that out of their total 20 cents only 5 cents had been sold under suit Document No.1, the remaining property belongs to the defendants, it includes the said 1 ½ cents also. Plaintiff contends that the said 1 ½ cents does not belongs to the defendants at all. In such circumstances, measuring of the property of both with reference to their respective titile deeds,moreparticularly with reference to the boundaries with the help of a Taluk Surveyor will give a lasting solution to both and will effect loss to one of the parties.
11. And these aspects cannot be demonstrated and understood by the Court by oral evidence. That will be one of the reason for appointment of an Advocate/Commissioner. It will not cause prejudice to the defendants. In such view of the matter question of collecting evidence by the plantiff as to prove his case becomes inconsequential and inappropriate.
12. Above all, even without any of the party moving an application for appointment of an Advocate/Commissioner, if the Court feels that to solve the matter, it is needed the Court itself can appoint an Advocate/commissioner for noting the physical features and measuring of the property with the assistance of a Taluk Surveyour when it will enable the Court to pronounce Judgment in that event either party has no say. In such view of the matter, the view taken by the Trial Court is not correct.
12. In view of the foregoings, ordered as under:
(1) This Revision succeeds.
(2) The order passed by the learned Principal District Munsif, Poonamallee in I.A.No.1065 of 2012 dated 10.10.2012 is set aside.
(3) I.A.No.1065 of 2012 stand allowed.
(4) The Trial Court will appoint a learned member of the Poonamallee bar as an Advocate/Commissioner.
(5) The Advocate/Commissioner's remuneration is fixed at Rs. 10,000/-
(6) The learned Advocate/Commissioner will have the assistance of an Taluk Surveyor. He will be paid fees as per rules.
(7) The said remuneration and fee shall be paid by the plaintiff without any delay.
(8) The learned Advocate/Commissioner will give notice to both sides and do his commissiion work and file his report with sketch map, within a period of four weeks from the date of receipt of commission warrant.
(9) After filing of the report, the trial Court will give two weeks time to both sides, to file their objections, if any.
(10) As the suit is of the year 2004, the trial Court will expeditiously try and dispose of the suit.
(11) However, no costs.
27.03.2017 Index : Yes/No Internet:Yes/No arr To The Principal District Munsif Poonamallee.
DR.P.DEVADASS,J arr C.R.P. (npd)No.4888 of 2012 27.03.2017 http://www.judis.nic.in