M. Sellamuthu vs M. Samiyathal

Honourable Mr. Justice G. Rajasuria

Narratively but precisely, broadly but briefly, the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition

would run thus:

Learned counsel appearing for the Revision Petitioner would submit that earlier the Lower Court appointed an Advocate Commissioner in I.A.

No. 276 of 2010 for visiting the suit property and measuring the same and noting down the physical features and submitting a report. The

Commissioner also submitted his report with sketch. However, the plaintiff filed I.A. No. 437 of 2011 to get the Commissioner''s Report set aside

and for appointment of a fresh Commissioner with a direction to visit the suit property, note down the physical features after measuring it as per the

partition deed dated 06.01.1999. The Lower Court allowed the said application in I.A. No. 437 of 2011.

The learned counsel for the plaintiff who is the Revision Petitioner herein would submit that the Lower Court, instead of scrapping the entire

Commissioner''s Report, ought to have very well observed that the observation of the Commissioner relating to the possession of the respective

portions of the suit property by the parties concerned should be eschewed, however instead of expunging the said portion of the Commissioner''s

Report, the entire report was set aside, and that no fruitful purpose would be served by appointing a new Commissioner.

Perused the records. The order of the Lower Court no doubt is mainly centered on only one fact that the Commissioner overreached himself by

observing that various portions of the suit property are under the possession of several persons. It is also the grievance of the plaintiff that the

earlier Commissioner also measured the property which was not mandated to be measured by the Court concerned. As such, the Lower Court

accepted the contention on both the counts and scrapped the earlier Commissioner''s Report and ordered for appointment of a fresh

Commissioner. I could see no perversity or illegality in the order passed by the Court, because the Commissioner cannot be delegated to ascertain

as to who is in actual possession of the suit property, because it is the primary duty of the Court to decide the same. Hence, the Trial Court being

the first Court of facts, thought it fit in its discretion to set aside the earlier Commissioner''s Report and to order for appointment of fresh

Commissioner, which in my opinion is not perverse and need not be interfered with. As such, with the above observation, the Civil Revision

Petition is dismissed. Consequently, M.P.(MD)No. 1 of 2012 is closed. No costs.