Amid Stanly and Gracy vs Lakshmiammal and Mani

S. Palanivelu, J.—The petitioners are plaintiffs in O.S. No. 30 of 2003 on the file of the District Munsif Court, Udhagamandalam. The suit

was filed for permanent injunction against the defendants/respondents with respect to a vacant site. It is stated that the suit is in part-heard stage

and at this stage, the first respondent filed an application under Order 26 Rule IX C.P.C. for appointment of an Advocate Commissioner for local

inspection of the suit property with the assistance of a qualified Surveyor and submit his Report with a plan.

In the affidavit, it is stated that the first defendant is entitled to an extent of 5 cents and the plaintiffs have encroached their property and in order

to find the possession of the parties and the extent of the properties, a Commissioner has to be appointed and that he has to mention the physical

features of the properties.

The above said request was resisted by the plaintiffs in the counter.

Learned District Munsif has entertained the request of the first respondent by stating that in order to give a clear idea on the contentious issues,

the appointment of an Advocate Commissioner is essential.

Learned Counsel for the petitioners would submit that inasmuch as the first respondent has sought for ascertaining the factum of possession of

the properties by an Advocate Commissioner, the petition is not at all maintainable.

Conversely, learned Counsel for the respondents would submit that when there is a dispute with regard to the extent of the suit property among

the parties, the appointment of an Advocate Commissioner is warranted and the Commissioner''s Report will clarify the location and extent of the

properties and as to who are in actual possession of the properties.

As far as the claim of the first respondent is concerned, it is primarily for ascertaining the possession of the parties in the suit property and the

adjacent property. The factum of possession cannot be ascertained by the Commissioner, which could be proved by letting in oral evidence by the

parties before the court and it is for the court to appreciate the oral and documentary evidence on record and to come out with a finding as to

possession.

Learned Counsel for the petitioners has placed reliance upon two decisions of this court. In 2006 (2) L.W. 159 (Chandrasekaran and 6 Ors. v.

V. Doss Naidu), this court has held that the power conferred on the court to appoint Commissioner to make local inspection is not to collect

evidence, but only to obtain evidence, which pertains to a peculiar nature which could be obtained only on spot inspection. In the said judgment,

the learned Judge has also referred to earlier decisions of this court and categorically observed that the factum of possession should be proved only

by adducing appropriate evidence and not by collecting the evidence by seeking appointment of Advocate Commissioner. In another decision

reported in 2008 (3) CTC 597 (K.M.A. Wahab and 5 Ors. v. Eswaran and Anr.), this court, while dealing with this subject has referred to earlier

judgments of this court reported in Mrs. Jabeen Taj Vs. Mrs. M. Parveen Banu and M. Javeed Khan, and in 2006 (2) L.W. 159

(Chandrasekaran and 6 Ors. v. V. Doss Naidu) and culled out the portions available in the judgments, which go to the effect that an Advocate

Commissioner could be appointed only when the court is satisfied that on the materials available on record, the party is not able to produce the

desired evidence, the court may assist the party to appoint the Advocate-Commissioner to obtain the evidence. It is further stated therein that as

regards possession, such aspect could be proved by the parties by producing necessary documents.

Learned Counsel for the respondents garnered support from a ruling of this court in 2005 (3) MLJ 525 (Sivagurunathan v. Ramalingam and

Ors.), in which, it is held that when the location of the plaintiff''s property and the extent is denied, Commissioner ought to have been appointed for

effectively adjudicating the dispute and the Report of the Advocate Commissioner and the plan drawn to scale would considerably reduce the oral

evidence which aspect was not taken into consideration by the lower Court.

There is a candid distinction between the aspects, i.e. to pin down the location of the properties of parties when there is real dispute with

regard to the extent and ascertaining the possession of the parties in the properties. As far as the former aspect is concerned, the Commissioner

could be appointed, whereas, for the circumstances warranting the consideration of the later aspect, the Commissioner cannot be appointed. The

facts in this case clearly go to show that the Commissioner is sought to be appointed to verify the possession of the parties, which is not permissible

in law.

In view of the consistent opinion rendered by this court, it is to be held that the petitioners are not eligible to get the relief of appointment of an

Advocate Commissioner and their claim has to be reversed. In such view of this matter, the order under challenge passed by the court below

suffers from infirmity, which needs interference at the hands of this court and it is accordingly set aside.

In fine, the Civil Revision Petition is allowed. No costs. Consequently, connected M.P. No. 1 of 2006 is closed.