Chandrasekaran Naidu and Others vs V. Doss Naidu

R. Banumathi, J.—This Civil Revision Petition is directed against the order dated 23.04.2002 passed in I.A. No. 1370 of 2000 in O.S. No.

224 of 1998 by the District Munsif, Ponneri, dismissing the Petition filed under Order XXVI Rule 9 C.P.C, refusing to appoint Advocate

Commissioner. The Defendants are the Revision Petitioners.

Facts necessitated for the disposal of this Civil Revision Petition could briefly be stated thus:-

Case of the Plaintiff is that the Suit Property originally belonged to one Subba Naidu. The said Subba Naidu has conveyed the Suit Property to

one Selvamani Mudaliar under a Registered Sale Deed dated 30.11.1970. Since the date of purchase, Selvamani was in possession and

enjoyment of the Plaint Schedule Property. One Malla Munuswamy Naidu (Father of the Defendants 1,2,4 and 5) and Ramakrishna Naidu and

Lingenti Rengappa Naidu have filed the Suit in O.S. No. 6 of 1972 on the file of District Munsif Court, Tiruvallur against the said Selvamani

Mudaliar and his Vendor for the relief of Permanent Injunction. The Suit was dismissed on 05.02.1973. The Appeal in A.S. No. 164 of 1977

preferred by Malla Munuswamy Naidu and others before Subordinate Court, Chinglepet was also dismissed on 10.01.1979. The Second Appeal

preferred by the Defendants was also dismissed by 16.04.1981.

Further case of the Plaintiffs is that the said Selvamani Mudaliar died leaving his Wife, Sons and Daughters as Legal Heirs. Patta for the suit

property was changed in the name of Krishnaveni Ammal, wife of late Selvamani Mudaliar. The Plaintiff has purchased the suit property under a

Sale Deed dated 14.02.1996 from the Legal Heirs of Selvamani Mudaliar. The patta has been transferred in the name of the Plaintiff and the

Plaintiff is in peaceful possession and enjoyment of the Suit Property, cultivating personally and paying land revenue to the Government. The

Defendants having lost their case in all the forums have no manner of Right, Title or Interest over the Suit Property. The Defendants have no right

to interfere with the possession of the Suit Property by the Plaintiff. Since the Defendants attempted to interfere with the possession of the suit

property in the third week of April 1998, the Plaintiff has filed the Suit in O.S. No. 224 of 1998 for Permanent Injunction.

Resisting the suit, the Defendants 2 to 4 have filed the Written Statement (adopted by other Defendants)contending that Malla Munuswamy

Naidu and others have filed O.S. No. 6 of 1972. Inspite of dismissal of O.S. No. 6 of 1972 and A.S. No. 164 of 1977, Malla Munuswamy

Naidu and the Defendants-1,2,4 and 5 have continued to be in possession of the suit property. Malla Munuswamy Naidu, the First Plaintiff in O.S.

No. 6 of 1972 has constructed a house in the Suit Property and has been residing there. The Defendants own property on the Northern Side.

Along with their property on the Northern Side, nearly 50 cents in the Northern Portion of the suit property was being enjoyed as house sites by

the Defendants and their Father - Malla Munuswamy Naidu. Even about 20 years ago, the Electric Service connection in S.C. No. 403 has been

obtained by the Fourth Defendant to put up houses in those houses constructed in the suit property. The Defendants have been paying the current

consumption charges. The truth and validity of the grant of patta in the name of Krishnaveni Ammal is denied. Even if any patta has been granted, it

is not binding on the Defendants and on the basis of the alleged Patta, no right or possession could be claimed in the Suit Property. The Defendants

1 to 5 and the Second Plaintiff in O.S. No. 6 of 1972 have raised Guava and Coconut trees in 2.50 acres of the Southern Side of the Suit

Property more than ten years ago and the trees have been yielding usufructs. The Defendants are cultivating the lands and enjoying usufructs of

Guava and Coconut trees raised in 2.50 acres of the Southern side suit property. In view of long possession and enjoyment of the Suit Property,

the Defendants perfected their title by adverse possession and hence, the Plaintiff is not entitled for any relief in the Suit Property.

I.A. No. 1370 of 2000:- During the pendency of the Suit, the Defendants have filed this Application for Appointment of Advocate

Commissioner to inspect the Suit Property and to note down the physical features with the Plan and also to note the existence of the trees, age of

the trees and the age of the house. The Application has been filed to note down that in the Suit Property, there is existence of the house, Guava

and Coconut trees and such other features.

The Application for Appointment of Commissioner was strongly objected to by the Plaintiffs contending that the Application has been belatedly

filed when the Suit is ripe for Trial. The Application was further objected that an Advocate Commissioner cannot be appointed to inspect the

adjacent properties of the Suit Property, which is not the subject matter of the Suit and that the Advocate Commissioner cannot be appointed to

note down the factum of possession.

Upon consideration of the rival contentions of both parties, learned District Munsif has dismissed the Application inter-alia on the following

grounds:

i. that 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 the trees.

iii. The Petition has been filed with a view to delay the trial proceedings.

Aggrieved over the refusal to appoint the Advocate Commissioner, the Defendants have preferred this Civil Revision Petition.

Learned counsel for the Revision Petitioners has submitted that the Revision Petitioners / Defendants have filed the Written Statement inter-alia

contending that there is a Will in the Suit Property and that they have constructed a house and also raised the trees. It is further submitted that the

Defendants are in enjoyment of the Suit Property in S. No. 8/2 along with the property in S. No. 8/1 as one Item and that physical features are to

be noted. Drawing the attention of the Court to the filing of the Written Statement, learned counsel for the Revision Petitioners has submitted that

there is no delay in filing the Application for Appointment of Advocate Commissioner. Learned counsel has further submitted that the Trial court

was not right in expressing its view as to the evidentiary value as to the materials to be collected. In support of his contention, learned counsel for

the Petitioners relied upon the decision reported in Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam AIR 1986 MAD 33.

Countering the arguments, learned counsel for the Respondent has drawn the attention of the Court to the number of documents filed along

with the Plaint and has submitted that in the light of the documents filed by the Plaintiff and the earlier litigation, the Appointment of Advocate

Commissioner is not warranted. It is further submitted that the factum of possession and age of the trees are the main issues to be determined by

the Court in the Suit and the same cannot be delegated to the Advocate Commissioner. He has further submitted that the factum of possession is to

be proved by adducing the evidence. In support of his contention, learned counsel for the Respondent has relied upon the decisions reported in

1998 (3) L.W. 773 2002 (3) C.T.C. 748 and Pushparaj, Selvaraj, Soundararaj, Chella Nadar, Steephen and Thankaraj Vs. Chellan, .

Whether the Defendants are entitled to seek for appointment of Advocate Commissioner to report about the physical features and age of the

house and the trees thereon is the main point that arises for consideration in this Civil Revision Petition.

The Suit Property relates to the property in S. No. 8/2 Atthur Village, Ponneri Taluk to an extent of 3.10 acres. The Commissioner was sought

to be appointed not only to note down the physical features in Suit S. No. 8/2, but also to note down the physical features of the property,

adjacent to the suit property. The Commissioner was also sought for to note down the existence of the house and the trees and the age of the

house and the trees thereon. In this backdrop, the main point for consideration is whether there is any erroneous exercise of discretion in declining

the appointment of Advocate Commissioner.

Case of the Defendants is that Subba Naidu executed an Agreement of Sale to Malla Munuswamy Naidu and his Brothers. It is stated that

subsequently, the said Subba Naidu along with Kothanda Naidu executed the Sale Deed dated 30.05.1966 in favour of Malla Munuswamy Naidu

and others, but the Sale Deed could not be registered. The Suit Property in S. No. 8/2 originally belonged to Subba Naidu from whom, the

Plaintiffs purchaser Selvamani Mudaliar has purchased the same under the Sale Deed dated 30.11.1970. Father of Defendants 1,2,4 and 5 viz.,

Malla Munuswamy Naidu and his Brothers Ramakrishna Naidu and Lingenti Rangappa Naidu have filed O.S. No. 6 of 1972 against Selvamani

Mudaliar.

Further case of the Defendants is that during the pendency of the suit in O.S. No. 6 of 1972 and A.S. No. 164 of 1997 and even thereafter,

Malla Munuswamy Naidu has put up residential house in the Northern Portion of the Suit Property. He had also sunk a Well and obtained electric

service connection. The Defendants have raised Guava and Coconut trees in a portion of the Suit Properties and the trees are more than 10 years

old. Thus, the Defendants came to be in possession of the suit property notwithstanding the dismissal of the suit in O.S. No. 6 of 1972 and A.S.

No. 164 of 1977 and the Second Appeal.

According to the Defendants, they are residing in the residential house constructed in the Northern portion of the suit property. The Guava and

Coconut trees raised in a portion of the suit property are more than 10 years old. It is the further contention of the Defendants that the physical

features of the suit property would go a long way in bringing their case and oral evidence would be reduced. Hence, on behalf of the Defendants, it

is submitted that the Advocate Commissioner is to be appointed to note down the existence of the house, age of the trees and the buildings and to

measure the property with the assistance of the Taluk or District Surveyor.

The suit is of the year 1998. Written Statement was filed on 09.10.2000. Only thereafter in December 2000, the Commissioner Application

was filed. Counter was filed on 26.03.2002. The Suit has been filed for Permanent Injunction. The controversy between the parties is as to who is

in possession of the Suit Property. Of course, the Written Statement was filed in October 2000. The Commissioner Application was filed within

two months thereafter. But the fact remains that the application for Appointment of Advocate Commissioner was filed four years after the filing of

the Suit. The delay in filing the Commissioner Application is to be noted.

The Commissioner is sought for to note down the existence of the house, age of the house, Guava trees and Coconut trees and their age.

Though the Appointment of Advocate Commissioner is sought for under the pretext of noting down the physical features, indirectly it only seeks to

find out the factum of possession. The material issue in the suit is relating to the nature of possession and lawful right of the Defendants (if any).

That material issue of determining the possession cannot be left to the Advocate Commissioner. The Appointment of Advocate Commissioner for

making enquiry about the factum of possession of the property in dispute is improper since the same has to be adjudicated upon framing issues and

recording the evidence.

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. If really, the

Defendants are in possession of the Suit Property, the possession could be proved by producing House Tax Receipts, Adangal and such other

desired oral evidence. When the concurrent findings in the earlier litigation in O.S. No. 6 of 1972 and A.S. No. 164 of 1977 are against the

Defendants, it would not be appropriate to Appoint the Advocate Commissioner to note down the existence of the house trees, so as to bring out

the possession of the Defendants. In the facts and circumstances of the case, particularly in the light of the earlier Judgment in O.S. No. 6 of 1972

and A.S. No. 164 of 1977, there cannot be mechanical and indiscriminate appointment of Advocate Commissioner. The contention that the

Defendants would pay the remuneration and that the Plaintiff may not be prejudiced by Appointment of Advocate Commissioner has no force.

Apart from seeking Appointment of Advocate Commissioner to note down the physical features of the Suit Property in S. No. 8/2,

Application has been filed to note down the physical features of the adjacent property of the Defendants property on the Northern Side in S. No.

8/1 also. Strong objection has been raised by the Respondent / Plaintiff on the Appointment of Advocate Commissioner to note down the physical

features of the adjacent property of the Defendants. Learned counsel for the Revision Petitioners / Defendants has submitted that the

Commissioner may be appointed to make local inspection (for the purpose of elucidating the matter in dispute) and contended that when the

contention of the Defendants is that they are in possession of the Northern Side of the Suit Property along with their property on the Northern Side

in S. No. 8/1, that aspect is to be elucidated by Appointment of Advocate Commissioner and the Lower Court erred in declining to appoint the

Commissioner. This contention of the learned counsel for the Revision Petitioners does not merit acceptance. Possession of the Defendants in S.

No. 8/1 is a matter of evidence. Power is conferred on the Court to appoint Commissioner to make local inspection not to collect evidence; but

only to obtain evidence, which is a peculiar nature which could be obtained only on spot inspection. Possession of the Defendants in S. No. 8/1

could be well proved by adducing appropriate evidence. In that view of the matter also, the order of the Lower Court declining to appoint

Advocate Commissioner is to be confirmed.

Submitting that the refusal to appoint Advocate Commissioner for local inspection amounts to failure to exercise discretion, learned counsel for

the Revision Petitioners relied upon the decision reported in Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam AIR 1986

MAD 33. That case arose out of the situation where the Defendants have attempted to put up construction by encroaching into the suit property.

On such factual background, in the said case, it was found that the Appointment of Advocate Commissioner is only to make proper inspection and

to note down the encroachment and the area of encroachment. The case in hand stands on a different footing wherein the parties are seeking to

appoint Advocate Commissioner to note down their possession, construction of the house and the trees raised by them. The factum of possession

should be proved only by adducing appropriate evidence and not by collecting the evidence by seeking Appointment of Advocate Commissioner.

The power under Article 227 of the Constitution is to be exercised by the Court in its discretion and cannot be claimed as of right by any

party. Under Article 227 of the Constitution of India, the well settled position is :-

i. The High Court''s power of revision under Article 227 of the Constitution would be restricted to interference in cases of grave dereliction of duty

or flagrant violation of law, and would be exercised most sparingly, in cases where grave injustice would be done unless the High Court interferes.

It cannot be used as appellate or revisional power.

ii. The power would not be exercised to correct an error of fact or of law, not being an ""error of law apparent on the face of the record"", of an

irregularity or illegality of procedure"" unless such error affects the jurisdiction, or involves a breach of the principles of natural justice; or to

reappraise the evidence.

iii. Nor will the High Court, in exercise of this power, substitute its own judgment for that of the inferior court, whether on a question of fact, or of

law or interfere with the intra vires exercise of a discretionary power, unless it is ""arbitrary or capricious"" or unless there was no evidence at all on

which the inferior Court could have come to the conclusion it did, or there was error of finding on a ""jurisdictional fact"". Where the High Court

found fault with the appellate court in declining to take into consideration certain documents and took them on record, instead of substituting its

opinion on the merits of the case, it should have remanded the matter back for the opinion of the appellate Court, it being the final Court of fact.

iv. Nor can the High Court, not being an appellate Court, pass an order of remand.

In short, as regards findings of fact of the inferior Courts, the jurisdiction under Article 227 is limited to only examining whether the subordinate

Court kept itself within the bounds of its authority in reaching the findings of fact. Consequently, the High Court cannot quash the judgment of the

Subordinate Court merely on the ground that its findings of fact were erroneous, but could do so only if the subordinate court came to its

conclusion without any evidence or upon a misreading of the evidence, or if its conclusions were perverse.

There is nothing to suggest that the impugned order is perverse or in violation of law warranting interference under Article 227 of the Constitution

of India.

Upon consideration of the facts and circumstances of the case, learned District Munsif has rightly declined to appoint Advocate Commissioner

to note down the physical features and thereby elucidating the factum of possession. The impugned order does not suffer from any material

irregularity. This Revision Petition has no merits and is bound to fail.

Therefore, the order dated 23.04.2002 passed in I.A. No. 1370 of 2000 in O.S. No. 224 of 1998 by the District Munsif, Ponneri is

confirmed and this Civil Revision Petition is dismissed. In the facts and circumstances of the case, there is no order as to costs. The Suit is of the

year 1998. Learned District Munsif, Ponneri is directed to expedite the trial of the Suit and dispose of the same expeditiously in accordance with

law.