A. Senthilkumar and A. Sivakumar vs M. Kathamuthu @ Ravi

G. Rajasuria, J.—Inveighing and impugning the order dated 08.09.2005 passed by the learned Additional District Munsif, Villupuram in I.A.

No. 1140 of 2005 in O.S. No. 464 of 2004, this civil revision petition is focussed.

The gist and kernel, the pith and marrow of the relevant facts, which are absolutely necessary and germane for the disposal of this revision

would run thus:

The revision petitioner/plaintiff filed the suit O.S. No. 464 of 2004 seeking the following reliefs:

- that the title to the suit property be declared in favour of plaintiffs

- that the defendant be directed to remove the superstructure and deliver vacant possession to plaintiffs.

- if the defendant fails to do so, the plaintiffs may be directed to execute this decree, take delivery of the suit property after removing the

superstructure at their cost,

- the plaintiffs may be directed to recover the cost of removal of the construction in execution of this decree itself

- that the defendant be directed to pay Rs. 1,500/- being damages for one month

- that the defendant may be directed to account for the future income from the date of plaint till delivery of possession and pay the same with

interest

While so, during the pendency of the suit, the plaintiffs filed I.A. No. 1140 of 2005 seeking appointment of an Advocate Commissioner to inspect

the suit property in the suit O.S. No. 464 of 2005 and one other suit, to measure the same; to note down the physical features with the help of a

qualified Civil Engineer and to furnish the report. After hearing both the sides, the lower court dismissed the said application. Being disconcerted by

and dissatisfied with the order of the lower Court, this revision has been focussed on various grounds, inter alia thus:

The lower Court failed to see that noting the physical features of the suit properties would prove the nature of construction. The difference in

construction will help in concluding as to who put up such construction. The lower Court failed to note that witnesses cannot speak about what is

beneath the earth. Accordingly, they prayed for setting aside the impugned order of the lower Court and allowing the I.A.

Despite printing the names of the learned Counsel on either side, no one represented.

Pored over and perused the order of the lower court and the typed set of papers, which would demonstrate and display, exemplify and evince

that the suit itself is for declaration of plaintiffs'' title over the suit property and for ordering vacant possession of it, after getting demolished the

super structure. The affidavit of the second plaintiff would convey the idea that the Commissioner appointment sought by the plaintiffs was virtually

to conduct certain experiments in the existing construction in the suit property for the purpose of proving that the defendants as contended by them

did not erect the building afresh in the suit property but they made further construction in the already existing super structure. In a case of this

nature, where the title is in dispute and that too by contending that it is a poramboke land, it is for the plaintiffs to prove their case by adducing oral

and documentary evidence and they cannot get the Commissioner appointed so as to cull out evidence in their favour. In fact, the ratiocination

adhered to by the plaintiffs in seeking appointment of an Advocate commissioner could rightly be described as a round about way of proving their

case. It is not an easy task for a Civil Engineer to probe into all aspects of the construction and give an incontrovertible report conclusively which

would be beyond challenge as to which part of the construction was effected earlier and which was made subsequently and what are the respective

components etc. It would lead to unnecessarily dragging on the proceedings further. However, if the case of the plaintiffs is true as per the

averments found set out in the plaint, they could evidence positively and such a view au fait with law was correctly taken by the lower court

warranting no interference.

It is also a fact that even as per the plaint averments, in the suit property earlier the construction was put some 60 years ago by the plaintiff''s

grand father Govindasamy Gounder. However, the actual date or during the period in which the defendant had put up construction were not

known to the plaintiffs. The plaintiffs issued advocate notice to the defendant for which the defendant''s reply was that construction had already

been put up there to the knowledge of the plaintiffs. But the plaintiffs kept quite without raising any objection and such like. Precisely there is no

evidence as to when the alleged new construction was put up. Hence, if the Commissioner is appointed to go into such engineering technical

intricacies, it would amount to trying to catch a black cat in a dark room and thereby the issues would get side tracked, which this court cannot

approve either directly or indirectly by acceding to the request of the revision petitioners.

Accordingly, confirming the order passed by the lower court in I.A. No. 1140 of 2005, this civil revision petition is dismissed. No costs.

Consequently, the connected miscellaneous petition is closed.