Not satisfied with the commission report filed earlier, the petitioner filed a petition seeking to remit the report of the commissioner. The court below refused to accept the prayer made in the petition. That is challenged before this Court. 2. O.S.No.46 of 2012 was instituted by the petitioner/ plaintiff seeking mandatory injunction. It is related to removal of pipe which, the plaintiff claimed that the defendants have laid illegally through his property.
3. The defendants resisted the suit. A commission was issued. He filed a report and a plan, they are Exts.P3 and P3(a). On objection made by the petitioner in earlier occasion, it was remitted and therefore, an additional report was submitted. Again the petitioner moved a petition to remit the commissioner's report and the court below was not impressed with the necessity to remit the commissioner's report and dismissed the petition.
O.P.(C). No.2984 of 2014 -: 2 :-
4. Learned counsel appearing for the petitioner submits that the nature of right pleaded by the defendants to lay pipe through the property of the plaintiff has no legal sanction and they have no right to maintain a pipe through the property of the plaintiff. Since the commissioner has failed to give any particulars regarding the nature of the right claimed by the defendants, a remission of the commission report was sought for by the plaintiff. The court below was not justified in dismissing the petition, it is submitted.
5. As the nature of the right that the defendants have claimed to lay pipe through the property of the plaintiff is not a matter to be gone into at this point of time. The only question that arises for consideration is whether the court below was justified in refusing to remit the commissioner's report. The court below has noticed that all the points now sought for by the petitioner are available in the report before it and that there is no need to remit the commissioner's report.
6. It has already stated that whether the defendants have proved to establish their right to lay pipe through the suit property is to be determined after evidence is adduced in the O.P.(C). No.2984 of 2014 -: 3 :-
case and not by the commissioner.
7. It is trite law that the commissioner's report is only an item of evidence and it has to be appreciated along with other items of evidence. If during the trial it is found that the commissioner's report is not satisfactory and if additional report is required, the petitioner may make prayer at that time.
In the above circumstances, there is no need to interfere with the order of the court below and hence, this OP(C) is dismissed.
Sd/- P.BHAVADASAN, JUDGE.
Jvt