Banu @ Banumathi, Elumalai and Mani vs Muniammal

M. Duraiswamy, J.—A learned Judge of this Court has referred the above Civil Revision Petition to a Division Bench for considering the

following question:-

Whether an Advocate Commissioner can be appointed to ascertain the age of a building?

Before the learned single Judge, the learned counsel appearing for the petitioners relied upon a judgment reported in Saraswathy and Pulavar R.

Palanisamy Chettiar Vs. Viswanathan, wherein this Court held as follows:-

In view of the discussion above, the civil revision petition is allowed. The lower Court shall appoint an Advocate Commissioner for the

purpose set out in the petition in support of the application for appointment of an Advocate Commissioner. The Advocate Commissioner shall

measure the properties of both the parties and also note down whether there are projections of the sunshades over the plaintiff''s School Buildings

on the defendant''s property. The Commissioner shall also note down the age of the buildings of the plaintiffs and submit his report. The parties

shall file copies of their respective title deeds and also the plans from the Municipality to enable the Commissioner to inspect and file a proper

report.

The learned counsel appearing on behalf of the respondent in support of his contention relied upon the judgment reported in Chandrasekaran

Naidu and Others Vs. V. Doss Naidu, wherein this Court confirmed the fair and final order passed by the trial Court refusing to appoint an

Advocate Commissioner which found that (i) the Advocate Commissioner cannot be appointed to prove the long possession of the defendants, (ii)

the Commissioner cannot note the age of the building and trees and (iii) the petition has been filed with a view to delay the trial proceedings. This

Court, while dismissing the Civil Revision Petition, held that an Advocate Commissioner cannot be appointed to file a report relating to the nature

of possession.

According to the learned single Judge, since this Court has taken different views in the above referred judgments as to the appointment of

Advocate Commissioner to ascertain the age of the building, the learned Judge referred the matter to a Division Bench.

In the case on hand, the respondent who is the plaintiff in O.S. No. 472 of 2005 on the file of the Additional District Munsif Court,

Tiruvannamalai, filed the said suit for declaration, mandatory injunction, delivery of possession and for other reliefs. The said suit is being contested

by the revision petitioners who are the defendants in the said suit.

The revision petitioners/defendants filed an application in I.A. No. 25 of 2007 in O.S. No. 472 of 2005 under Order XXVI, Rule 9 of the CPC

for appointment of Commissioner to inspect the suit properties, note down the physical features and approximate age of the thatched shed in the

suit properties. In the affidavit filed in support of the application, the defendants have stated that the plaintiff alleged in the plaint that the defendants

had trespassed and constructed the thatched house in the said property on 9.8.2005. They have also stated that the thatched house was

constructed by them in the year 1995 and the same is old one. Further, the defendants have stated that the plaintiff deposed that the defendants

constructed the thatched house recently.

The respondent filed her counter stating that a commissioner cannot be appointed to ascertain the age of the building.

The trial Court after taking into consideration the case of both parties dismissed the application finding that an Advocate Commissioner cannot

be appointed to ascertain the age of the building since Advocate Commissioner is not an expert to give a finding with regard to the age of the

building. Further, the trial Court held that the age of the building can be proved only by oral and documentary evidences. Aggrieved over the order

passed by the trial Court, the defendants have filed the above Civil Revision Petition.

Heard the learned counsel appearing for the petitioners and the respondent.

The learned counsel appearing for the petitioners relied upon the following judgment:-

(i) Pillaiyar Vs. Ganesan and another,

(ii) Pormusamy Pandaram Vs. The Salem Vaiyappamalai Jangamar Sangam,

On a reading of both these judgments, it could be seen that both the Civil Revision Petitions were filed as against the order passed in the

applications for appointment of Advocate Commissioner but the appointment of Advocate Commissioner sought was not to ascertain the age of

building. Since the issue involved in the present Civil Revision Petition is whether a Commissioner can ascertain the age of the building, the

judgments relied upon by the learned counsel for the petitioners are not applicable to the present case.

The learned counsel appearing on behalf of the respondent in support of his contention relied upon the judgment reported in 2006-4-L.W. 970

(R. Sankarappan vs. R. Jayachandran) wherein this Court held that an Advocate Commissioner cannot be appointed to find out the facts and

gather evidences to prove the case of the parties.

The learned counsel appearing for the petitioners submitted that the defendants filed the application in I.A. No. 25 of 2007 under Order XXVI

Rule 9 of the CPC for appointment of Commissioner and not for Advocate Commissioner. The learned counsel also fairly submitted that only an

expert can be appointed to ascertain the age of the building.

Countering the submissions made by the learned counsel appearing for the petitioners, the learned counsel appearing on behalf of the

respondent submitted that an Advocate Commissioner cannot be appointed to give a finding with regard to the age of the building.

It cannot be disputed that the Advocate Commissioner is not an expert to give a finding with regard to the age of the building. The said

exercise can be done either by a qualified engineer or by an expert in the said field.

Even in the judgment reported in Saraswathy and Pulavar R. Palanisamy Chettiar Vs. Viswanathan, his Court held that though Advocate

Commissioner cannot decide the dispute, his inspection and report would help the Court in deciding the dispute. In Paragraph No. 15, while

allowing the Civil Revision Petition, this Court directed the trial Court to appoint an Advocate Commissioner for the purpose set out in the petition

in support of the application for appointment of an Advocate Commissioner. Further, this Court also directed that the Commissioner shall note

down the age of the building of the plaintiffs and submit his report.

In the judgment reported in 2006-2-LW 159 supra, this Court while confirming the order passed by the trial Court which dismissed the

application for appointment of Commissioner finding that (i) Advocate Commissioner cannot be appointed to prove the long possession of the

defendants, (ii) the Commissioner cannot note down the age of the building and the trees and (iii) the petition has been filed with a view to delay the

trial proceedings. Thus, the order of the trial Court was confirmed by this Court in the judgment reported in 2006-2-LW 159.

As already stated, since the Advocate Commissioner is not an expert to give a finding with regard to the age of building, seeking for

appointment of Advocate Commissioner for the said purpose cannot be done. The age of the building can be ascertained only by an expert in the

said field. If the party seeks to get a report with regard to the age of the building, the same can be done only with the assistance of a qualified

expert. Therefore, for ascertaining the age of the building, the parties can seek for appointment of an Advocate Commissioner to file a report with

regard to the age of the building only with the assistance of a qualified expert or engineer. An Advocate Commissioner cannot be appointed

independently to ascertain the age of the building. In such circumstances, the Court can direct the Advocate Commissioner to file a report with

regard to the age of the building with the assistance of a qualified expert or engineer.

Therefore, we are of the considered view that the Advocate Commissioner cannot be appointed to ascertain the age of the building. Hence,

we agree with the proposition laid down by this Court in the judgment reported in 2006-2-LW 159 and, with respect, are not agreeing with the

view taken in the judgment reported in Saraswathy and Pulavar R. Palanisamy Chettiar Vs. Viswanathan,

To summarise our answer to the question referred to the Division Bench is as follows:

An Advocate Commissioner cannot be appointed to ascertain the age of the building. The age of the building can be ascertained only by a qualified

expert in the said field.

As we have answered the reference as above, the Registry is directed to place the matter before the learned single Judge next week for hearing on

merits.