Mathew Mathan Cross vs S.S. Kannan

V.M. Velumani, J.—The Petitioner is the Defendant whereas the Respondents are the Plaintiffs in the Suit in O.S. No. 450 of 2011 on the file of the I-Additional District Munsif, Nagercoil.

The Respondents filed a Suit against the Petitioner, his younger brother and. Government Officials for declaration that the Suit property is an exclusive common pathway of both the Respondents and the Petitioner and for Permanent Injunction restraining the Petitioner from and in any way making any unauthorized and illegal construction of building over the Suit property. Along with the Suit, the Respondents filed an Application in I.A. No.923 of 2011 for appointment of an Advocate Commissioner to inspect the Suit property and to note down the physical features and nature of the property including the unauthorized construction being made in the Suit property with the help of town Surveyor of Special Grade Town Panchayath of Kanyakumari and to file a repot. The learned judge by an Order dated 14.9.2011. appointed an Advocate Commissioner to inspect the Suit property with the aid of qualified Surveyor, if needed a Taluk Surveyor for the purpose to note down the physical features and nature of the property including the construction if any being made in the Suit property and directed to file a Report and Plan if any before the Court within two weeks. The Advocate Commissioner after inspection with the help of Taluk Surveyor filed Interim Report on 28.9.2011 and Final Report on 18.10.2011. The Petitioner at the time of hearing on 29.9.2011 made a Complaint about the Advocate Commissioner. The learned Judge directed the Petitioner to file an objection to the Report of the Advocate Commissioner, if he is aggrieved.

The Petitioner filed an Application in A. No.1068 of 2011 to recall the Commissioner warrant issued to the Advocate Commissioner and to set aside the Interim Report filed by him on 28.9.2011 and he also filed an Objection to the Commissioner Report on 24.1.2012.

According to the Petitioner, the Advocate Commissioner without Notice to the learned Counsel for the Petitioner, inspected the Suit property on Subsequently, the Advocate Commissioner issued a Notice on 4.10.2011 with regard to the inspection of property. The learned Counsel for the Petitioner informed the Advocate Commissioner that he could not be presented on that day. The Advocate Commissioner inspected the property and filed Final Report. Therefore, he prayed to set aside the Report of the Commissioner and recall the Warrant issued to the Advocate Commissioner.

The Respondents filed Counter Affidavit and stated that the Advocate Commissioner inspected the Suit property only after issuing Notice to both the parties. The learned Counsel for the Petitioner refused to receive the notice. The Advocate Commissioner inspected the Suit property on 15.9.2011 and 19.9.2011 and filed his Interim Report on 29.9.2011. Further the Advocate Commissioner has fixed the inspection of the property to survey the land with the help of Taluk Surveyor, since it is very difficult to get Town Surveyor to inspect the property, the request of the learned Counsel for the Petitioner was rejected.

The learned Judge considered the pleadings 3rd the arguments of the learned Counsel, dismissed the Application filed by the Petitioner for recall the warrant and to set aside the report of the Advocate Commissioner. Against the Order of dismissal, the present Civil Revision Petition is filed.

Heard the learned Counsel for the Petitioner and the learned Counsel for the Respondents.

I have carefully perused the impugned Order of the learned Judge.

From the order and materials on record it is seen that by Order dated 14.9.2011 made in I.A. No.922 of 2011 ordered status quo as on date. The learned Judge on the same day, in I.A. No.923 of 2011 appointed an Advocate Commissioner to inspect the Suit property with the help of Town Surveyor and to file his report within two weeks from that date.

As per the Order of the Court, the Advocate Commissioner issued Notice to both parties and then only inspected the property and surveyed the property with the help of Taluk Surveyor. The Petitioner has not filed any objection with regard to the extent of the property as mentioned in the Final Report of the Advocate Commissioner. The objection of the Petitioner is that the Advocate Commissioner did not enquire the neighbour and did not verify the documents of title to the Suit property and the plan for construction of building by the Petitioner and therefore, sought for recall the warrant issued to the Advocate Commissioner and set aside the Report of the Advocate Commissioner. But, the Court did not issue warrant to the Advocate Commissioner to enquire, the neighbor or verify the title. The Warrant of Commissioner is only to inspect the property, to note down the physical features and nature of property including the construction if any being made in the Suit property with the help of Town Surveyor. Therefore the learned Judge rejected the contention of the Petitioner and dismissed the Application. Therefore, I find no infirmity or irregularity in the said Order which warrants interference by this Court.

In the result, the Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.