Anim adverting upon the order dated 4.1.2008 passed in I.A.No.1591 of 2007 in I.A.No.1891 of 2005 in O.S.No.2444 of 2004, by the First Additional Munsif, Salem, this civil revision petition is focussed.
2. A 'resume' of facts, which are absolutely necessary and germane for the disposal of the civil revision petition would run thus:
The respondents/plaintiffs herein filed the suit in O.S.No.2444 of 2004 seeking the following reliefs:
(a) to declare that the suit property measuring 2 X 32 sq.feet of lands belongs to the plaintiffs;
(b) pass a decree for mandatory injunction and ordering for demolish of unlawful constructions (i.e. Walls on both sides as described in the rough plan put up in the suit property within the time granted by this Honourable Court failing which permit the plaintiff to remove the same and recover cost from the defendants;
(c)Consequently pass a decree for permanent injunction restraining the defendants and their men from in any way interfering with the peaceful possession and enjoyment of the suit property.
3. While so, during the pendency of the suit, I.A.No.1891 of 2005 was filed by the plaintiff and a Commissioner was got appointed to visit the suit property and measure it and file his report. Whereupon, the Commissioner also submitted his report, after visiting the suit property and measuring the same. Being aggrieved by that, the defendants filed objections, setting out various grounds. I.A.No.86 of 2006 in I.A.No.1891 of 2005 was filed for scrapping the Commissioner's report. The said I.A. was dismissed. As against the same, earlier the present petitioners filed one another revision in C.R.P.No.462 of 2006, which was ordered as under:-
"6. As per the objections filed by the petitioners, in the third paragraph the petitioners have contended that the Commissioner did not fix any boundary of the suit property and did not localise the suit property, which contention is contrary to the report submitted by the Commissioner. A perusal of the documents filed in the typed set of papers reveals that the petitioners did not give any memo on the spot or even before filing the report to the Commissioner with regard to the dispute regarding the boundary. That apart, as rightly held by the Court below, a person, who seeks to scrap a report should plead and prove that the contents of the report are false. Mere allegation against the Commissioner, cannot be a ground to set aside the report of the Commissioner, when the contents is not proved to be false. As rightly held by the Court below even assuming that the report of the Commissioner is defective and there are omissions in the report, the petitioners can seek for clarification and call for further report from the Commissioner or even seek for a re-visit. But without that, the petitioner had sought for scrapping of the Commissioner Report. Besides that the trial of the suit was also commenced and as per the report of the Commissioner, the Commissioner has submitted a sketch along with the report. There is no whisper in the petition filed by the petitioner pointing out any defect in the sketch. As such, I find no reason to interfere with the order in the sketch. As such, I find no reason to interfere with the order of the Court below and hence, the civil revision petition is dismissed."
4. In commensurate with the same, I.A.No.1591 of 2007 was filed by the defendants for revisit by the Commissioner. However, the trial Court dismissed the same by the impugned order dated 4.1.2008. Being dissatisfied with and aggrieved by the said order, the present civil revision petition is focussed.
5. The learned counsel for the revision petitioner, placing reliance on the grounds of revision, would put across his point that the very Commissioner's report, which is found enclosed in the typed set of papers, would reveal that the current Field Measurement status is not available; neither the Village Administrative officer nor the Surveyor could furnish any Revenue Record, highlighting the respective rights of the parties over the suit property; the report already submitted by the Advocate Commissioner is not based on any Revenue Record, but it only reflects the physical features and nothing more; unless the Commissioner revisits and measures the respective properties, based on the antecedent title deeds, no solution could be arrived at.
6. Whereas the learned counsel for the respondents/plaintiffs would submit that it is only a matter of evidence to be adduced before the trial Court and it is not for the Commissioner to give any finding based on any documents and with the available Commissioner's report evincing and depicting the physical features, the matter could be processed further.
7. When all said and done, considering the pro et contra, in this factual matrix, I am of the considered opinion that in the absence of any recent Field Measurement extract demonstrating and evidencing the current holdings and entitlements of the respective parties, the Commissioner by revisiting the suit property for any number of times would not be in a position to arrive at a conclusion. In the existing Commissioner's report and sketch, the physical features are found detailed and delineated and in such a case it is for the parties to adduce evidence, based on the antecedent title deeds before the Court itself, and it is for the Court to appreciate such evidence found set out in the antecedent documents with that of the current documents and also the physical features as expressed and expatiated in the Commissioner's report. Over and above that, after hearing the arguments in the main suit, including the argument concerning the necessity for revisit by the Commissioner, if the Court feels that it is just and necessary to order for such revisit by the Commissioner, the same could be ordered or otherwise, the Court is at liberty to pronounce judgement based on the evidence and arguments.
8. The civil revision petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.