Gnanasekar vs Jeyaselan

R. Mala, J.—Civil Revision Petition is filed against the fair and decretal order dated 24.02.2014 in I.A. No. 172 of 2014 in O.S. No. 89 of 2010 on the file of the Principal District Munsif-cum-Judicial Magistrate Court, Chengam, Thiruvannamalai.

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

The respondent herein as a plaintiff filed a suit for declaration of title to the suit property along with fourth defendant and also injunction restraining the defendants 1 to 3 from interfering with the plaintiff''s peaceful possession and enjoyment of the suit property. The defendants 1 to 3 filed the written statement and contested the same. During pendency of the suit, the first defendant/revision petitioner herein came forward with an application in I.A. No. 172 of 2014 under Order 26 Rule 9 of C.P.C. for appointment of an Advocate Commissioner and to direct him to inspect the suit property along with VAO to ascertain whether the defendants 1 to 3 dug a well on the western side and dug two wells on the north east corner of the suit property and whether any motor pump set was in connection and whether they planted any coconut trees and whether they put up a cattle shed and whether they inserted any PVC pipes under the earth to draw water for irrigation. The trial Court, after hearing both sides, dismissed the application, against which, the present revision petition is preferred by the first defendant/revision petitioner.

Learned counsel for the revision petitioner submitted that the trial Court while dismissing the application held that digging of two wells and also inserting of motor pump sets under the earth have been accepted by the defendants in the counter filed in the application, hence, appointment of Commissioner is not necessary to prove the possession and it is the duty of the plaintiff to prove his possession. The trial Court mainly focused upon that whether the suit property is a DC lands or Government poramboke lands and the same have to be decided only at the time of trial. It is not the case of the revision petitioner that the property is a DC land. Since the plaintiff filed the suit claiming title over the suit property without describing the physical features, the revision petitioner filed the application for appointment of Commissioner. But that factum was not considered by the trial Court and erroneously dismissed the application. Hence, he prayed for allowing the revision petition.

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

The respondent herein as a plaintiff filed a suit for declaration of title to the suit property along with fourth defendant and also injunction restraining the defendants 1 to 3 from interfering with the peaceful possession and enjoyment of the plaintiff in the suit property.

In the plaint, it was stated that the suit property is belonged to the Government of Tamil Nadu and it was denoted to the depressed class people and that the father of the plaintiff namely, Munian was in possession and enjoyment for more than several decades and patta has been issued to him. After his death, the plaintiff and his brother/fourth defendant succeeded the property and they are in possession and enjoyment of the same. Further it was stated that the defendants 1 to 3 belong to non DC and Vannia by caste and since they attempted to interfere with the plaintiff''s possession, he filed the above suit.

The defendants 1 to 3 filed the written statement stating that the suit property originally belonged to the Government Poramboke land, which was acquired by one Annamalai, S/o. Thoppalan and he was in possession and patta was issued to him. The father of the plaintiff namely, Muniyan purchased the same from Annamalai vide registered sale deed dated 26.04.1951 for a valuable consideration of Rs. 200/-. After the death of Muniyan, his wife and children succeeded the property. Thereafter, the plaintiff and fourth defendant, who are the sons of Muniyan, executed the sale deed in favour of the defendants'' father namely, Manicka Gounder, S/o. Perumal Gounder vide registered sale deed dated 14.03.1966 for a valuable consideration of Rs. 1,000/- and from the date onwards, they are in possession and enjoyment of the suit property and they dug two wells, planted coconut saplings, fitted motor pump sets and installed PVC pipes from the suit property to other properties. So the first defendant filed an application for appointment of Advocate Commissioner to note down the above said features in the suit property.

It is a well settled dictum of the Apex Court that the Commissioner cannot be appointed to collect the material evidence to prove the case. The trial Court on considering the above said dictum held that fitting of motor pump set has been mentioned by both the parties and hence, whether the suit property is DC land or Government Poramboke land to be decided only at the time of trial? Under such circumstances, I am of the view, the revision petitioner is not entitled to collect the material evidence by way of filing application for appointment of Commissioner. So I do not find any merits in the revision petition and it is hereby dismissed.

In the result, the Civil Revision Petition is dismissed after confirming the fair and decretal order dated 24.02.2014 in I.A. No. 172 of 2014 in O.S. No. 89 of 2010 on the file of the Principal District Munsif-cum-Judicial Magistrate Court, Chengam, Thiruvannamalai. No costs. Consequently, connected Miscellaneous Petition is closed.