G. Siddeshraja vs Balamani

R. Mala, J.—Civil Revision Petition is filed against the fair and decretal order dated 18.06.2014 made in I.A. No. 1090 of 2013 in O.S. No. 378 of 2013 on the file of the Additional District Munsif Court, Tiruchengode.

At the time of admission, argument of the learned counsel for the revision petitioners is heard in length.

The revision petitioners herein as the plaintiffs filed a suit for declaration of title to the suit property measuring a length of 18 meters East West on both sides and two feet long North South on both sides with a total area of 118 sq.ft. and for consequential injunction. The plaintiffs have also filed an application in I.A. No. 1090 of 2013 under Order 26 Rule 9 of C.P.C. for appointment of an Advocate Commissioner to make local inspection of the suit property and to note down the existing physical features in and around the suit property and also measure the suit property with the assistance of a qualified surveyor and the local V.A.O. and to file his report. The defendants filed a detailed counter in the application and also written statement in the suit. The trial Court, after hearing both sides, dismissed the application stating that the possession cannot be proved by way of appointment of Advocate Commissioner, against which, the present revision petition is preferred by the plaintiffs/revision petitioners.

Learned counsel for the revision petitioners submitted that the plaintiffs have not sought for appointment of Commissioner for proving their possession. The southern wall of the defendants'' property is the northern wall of the plaintiffs'' property and already the revision petitioners filed a suit for bare injunction and that has been dismissed against which, they preferred an appeal, in which, they filed an application for withdrawing the suit and it was dismissed by the Court with liberty to file fresh suit on the same cause of action. Then only, the present suit has been filed for declaration of title and injunction. It is further submitted that the defendants raised a plea in the written statement that there was Our Panchayat, in which, it was stated that the father of the defendants was directed to pay a sum of Rs. 12,000/- and odd, since the small encroachment made by the first plaintiff. The plaintiffs had not filed the application for collecting material evidence and only to point out the physical features of the suit property. Hence, he prayed for allowing of the revision petition.

Considered the submissions made by the learned counsel for the revision petitioners and perused the typed set of papers.

The revision petitioners herein as the plaintiffs filed a suit for declaration of title and injunction stating that the father of the plaintiffs 1 and 2 and husband of the third plaintiff namely, Gopala Krishnan build up a building and running a power loom factory. The fourth plaintiff, who is the brother of Gopala Krishnan has given up all his right over the house site to him as per the deed dated 15.05.1995. The property is an ancestral property of Gopala Krishnan. The first defendant is the mother of the defendants 2 to 4 and they have their lands in T.S. No. 125 north of T.S. No. 124 and they have no right or title over the suit property in T.S. No. 124. Since the defendants tried to put up a wall in the suit property, the plaintiffs forced to file the suit in O.S. No. 1169 of 2004 and after contesting, that suit was dismissed, against which, first plaintiff preferred an appeal in A.S. No. 2 of 2012, in which, the first plaintiff has also filed an application for withdrawing the suit. However, the same was dismissed with the permission to file a fresh suit. Then only, the plaintiffs filed the present suit for declaration of title and injunction.

The defendants/respondents herein filed the written statement. Even though they made several defence that the suit is barred by res judicata under Order II Rule 2 of C.P.C., in para-15 of their written statement, they have admitted that they are not having any right over T.S. No. 124. Further it was stated as follows:

15.....In these circumstances this defendant''s father convened Our Panchayat and in the Our Panchayat, this defendant''s father was permitted to put up his Southern wall along with the Northern wall illegally put by the 1st plaintiff by way of encroaching into 1 to 2 feet in the Southern portion of T.S. No. 125 and thereby this defendant''s father was directed to pay a sum of Rs. 12,000/- and odd, to the Our Panchayat since the small encroachment made by the 1st plaintiff into T.S. No. 125 cannot be removed and so this defendant''s father has permitted to put up his southern wall, attaching to the Northern wall put up by the 1st plaintiff both in T.S. No. 125 and T.S. No. 124. This defendant''s father paid the said sum of Rs. 12,000/- to the Our Panchayat. After paying the said sum of Rs. 12,000/-, this defendant''s father also put up his Southern wall to some extent, along with the 1st plaintiffs Northern wall. As per the Our Panchayat decision, the above said Southern wall belonging to the 1st plaintiff should be treated as common wall. After accepting said the Our Panchayat decision the 1st defendant was preventing this defendant''s father to complete his southern wall attaching to the northern wall of the 1st plaintiff, due to enmity.....

It shows that the defendants made a construction in T.S. No. 124 and encroached upon the property of the plaintiffs and constructed southern wall, which is a northern wall of the plaintiffs. Therefore, in the Panchayat, they took decision and directed the father of the defendants 2 to 4 to pay a sum of Rs. 12,000/- and odd to the plaintiffs.

Now the revision petitioners/plaintiffs filed an application in I.A. No. 1090 of 2013 under Order 26 Rule 9 of C.P.C. for appointment of Commissioner and in para-4 of the affidavit, it was stated as follows:

After the demise of Gopala Krishnan I am only enjoying the property by running the power loom factory. The property left by Gopala Krishnan bears T.S. No. 124, with a length of 18 meters east-west on the North and 17.2 meters east-west on the South, to the length of 6.4 meters north-south on the west, 7.8 meters north-south on the East. The factory faces East. It bears door number 13. It is energized by service connection number 1172. The dispute in this case is not about the entire land in the T.S. No. 124 and also about the building standing on it. On the Northern side of the building there is a vacant site. It is about 2 feet broad north-south and 18 meter long East-West on the North. This area in fact, is fully described hereunder, hereinafter to be called, suit property.

The prayer in the application runs as follows:

.... to pass an order appointing an Advocate/Commissioner directing him to make a local inspection of the suit property and note down the existing physical features in and around the suit property and also measure the suit property drawn to scales with the assistance of a qualified Surveyor and the local V.A.O. and to file his report with plan drawn to scales.

Admittedly, as per the written statement, the defendants have admitted that they encroached upon the property of the plaintiffs and made construction and it was agreed by the father of the defendants 2 to 4 in the Panchayat and that he paid Rs. 12,000/- and odd to the plaintiffs and completed the construction. It shows that the encroachment is not disputed by the defendants/respondents. In the plaint also, it was specifically stated that the plaintiffs/revision petitioners are owners of T.S. No. 124 and the defendants are owners of T.S. No. 125, which are adjacent properties and the existence of wall is also not disputed. Under such circumstances, appointment of Commissioner will no way help the Court to decide the matter. It is the duty of the defendants to prove that the encroachment has been solved by way of paying compensation in Our Panchayat. So the trial Court has correctly held that no Commissioner can be appointed to collect the materials to prove the possession. Accordingly, the revision petition is dismissed as devoid of merits.

In the result, the Civil Revision Petition is dismissed after confirming the fair and decretal order dated 18.06.2014 in I.A. No. 1090 of 2013 in O.S. No. 378 of 2013 on the file of the Additional District Munsif Court, Tiruchengode. No costs. Consequently, connected Miscellaneous Petition is closed.