Nallan vs Ponnusamy

R. Mala, J.—The Civil Revision Petition is filed against the fair and decreetal order dated 02.02.2013 made in I.A.No.441 of 2012 in O.S.No.67 of 2008 on the file of the Principal District Munsif Court, Tiruchengode.

The respondent herein as a plaintiff filed a suit in O.S.No.67 of 2008 for declaration of title and mandatory injunction. The defendants/revision petitioners herein has filed a written statement and contested the same. During the pendency of the trial, the plaintiff has filed an application in I.A.No.332 of 2008 for appointment of an Advocate Commissioner to inspect the property and file a report and the Commissioner has also inspected the suit property and filed his report. In pursuance of the same, both the parties filed their objections even in the year 2008. Again, the plaintiff/respondent has come forward with the application in I.A.No.441 of 2012 for appointment of a fresh Commissioner or to re-issue the warrant to the same commissioner to measure the suit properties. Resisting the same, the defendants/revision petitioners filed the counter. The trial Court, after hearing both sides, has re-issued the warrant to the same Commissioner and directed him to measure the suit property and to file a supplementary report, against which, the present revision petition has been preferred by the revision petitioners/defendants.

Learned counsel for the revision petitioners/defendants submitted that once the Commissioner report has been filed, without scraping the same, new Commissioner cannot be appointed. He further submitted that there is a delay in filing the present application. Even in the year 2008, Commissioner was appointed and objections have filed by both the parties. But the plaintiff kept quite for the past four years and has come forward with the application only in the year 2012, with a view to drag on the proceedings. To substantiate his arguments, he relied upon the judgment of this Court reported in Anna Sudha Devi Vs. P. George Samuel, . Hence, he prayed for allowing of this revision petition.

Resisting the same, learned counsel for the respondent/plaintiff submitted that the suit has filed for declaration of title and mandatory injunction. Since the appointment of Commissioner is necessary for proper adjudication of the suit, the plaintiff has filed an application for appointment of Commissioner and the Commissioner was appointed and inspected the suit property along with surveyor and filed the report. It is further submitted that objections have been filed by both the parties. Since the report is not helpful for proper adjudication, the plaintiff has filed another application in I.A.No.441 of 2012 for appointment of a fresh Commissioner or re-issuing warrant to the same Commissioner to inspect the suit property. The trial Court has rightly re-issued warrant to the same Commissioner for filing the supplementary report. So no prejudice would be caused to the defendants. He further submitted that if the Commissioner''s report is vague and silent, it is absolutely necessary for re-issuance of warrant to the same Commissioner. To substantiate his arguments, he relied upon the decision of the Madurai Bench of Madras High Court reported in Subramanian Vs. Sermathangam, and prayed for dismissal of the revision petition.

Considered the rival submissions made on both sides and perused the typed set of papers.

The respondent herein as a plaintiff filed a suit for declaration of title and mandatory injunction in respect of house site including right of pathway and consequential reliefs. The revision petitioners herein are the defendants filed the written statement and contested the suit. During the pendency of the suit, the plaintiff has filed an application in I.A.No.332 of 2008 for appointment of the Advocate Commissioner to inspect the suit property. The trial Court after hearing both sides, appointed the Commissioner and he also inspected the suit property along with Surveyor. Even though the property is situated in between Tiruchengode and Namakkal Highways, the Commissioner has not sought for any assistance from the Highways Department. He used the service of Taluk Surveyor from the Revenue Department and filed the report along with the plan given by the Surveyor.

Admittedly, both the parties filed their objections. It is to be noted that the objections raised by the plaintiff are only formal, whereas the revision petitioners/defendants alone have disputed each and every aspects of the Commissioner''s report and raised their objections in para-1 to 4. Under such circumstances, for proper adjudication, the defects and ambiguities mentioned in the Commissioner''s report have to be clarified by the Commissioner.

Now it is appropriate to consider the decisions relied on by both sides:

(i) Learned counsel for the revision petitioners relied upon the judgment of this Court reported in Anna Sudha Devi Vs. P. George Samuel, , wherein it was held that appointment of second Advocate Commissioner is illegal unless the report filed by the first Advocate Commissioner is scraped. There is no quarrel over the above proposition. But the above citation is not applicable to the facts of the present case, because, in the case on hand, the warrant has been re-issued to the same Commissioner to clarify the defects and to file the supplementary report.

(ii) Learned counsel for the respondent relied upon the decision of the Madurai Bench of Madras High Court reported in Subramanian Vs. Sermathangam, , wherein it was held that if the Commissioner report is silent, due to some defects, it is necessary to re-issue the warrant to the same Advocate Commissioner for filing fresh report. It is appropriate to incorporate para-13, which runs as follows:

It is also the bounden duty of the plaintiff herein to establish and demonstrate that he has no other means of access to his property other than the said dotted line pathway. However, the report of the Advocate Commissioner is silent as silence could be in that aspect and the noting down of the physical features around the suit property of the plaintiff, is absolutely necessary and for that purpose, re-issuance of the Advocate Commissioner''s warrant is a must.

On perusal of the Commissioner''s report and objections raised by both the parties, it reveals that in the objections raised by the revision petitioners in para-1 to 4, they disputed each and every aspects of the Commissioner''s report. In such circumstances, if the Commissioner again inspects the property along with the qualified Surveyor of Highways Department, no prejudice would be caused to both sides. However, the expenses for re-visiting the suit property by the Commissioner should be borne only by the respondent/plaintiff irrespective of the result of the suit. Hence, I am of the view, for proper adjudication, supplementary report from the Commissioner is necessary. So re-issuance of warrant to the same Commissioner ordered by the trial Court is not illegal. I do not find any merits in the revision petition. The Civil Revision Petition deserves to be dismissed and it is hereby dismissed.

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