Raja vs Narashimamurthy and Senthil

M. Venugopal, J.—The Revision Petitioner/Petitioner/Plaintiff has filed the present Civil Revision Petition as against the order dated

29.07.2009 in I.A. No. 700 of 2007 in O.S. No. 168 of 2007 passed by the Learned District Munsif Court, Palacode.

The Petitioner/Petitioner/Plaintiff has filed the I.A. No. 700 of 2007 in O.S. No. 168 of 2007 on the file of the trial Court under Order 26 Rule

9 of CPC praying for an appointment of an Advocate Commissioner to measure the suit property and to submit a plan and also to file a report as

to whether there existed a well or otherwise in the suit property.

The trial Court, while allowing I.A. No. 700 of 2007 in O.S. No. 168 of 2007, has, among other things, stated that only after examination of

witnesses in the suit and also marking of documents it would come to light as to whether in the suit properties there existed a well already and that

after closure of the well, the Respondents had planted the coconut trees and further that from the Commissioner''s report and plan, one could not

come to know in the suit whether there existed a well or not and resultantly, dismissed the application without costs.

According to the Learned Counsel for the Revision Petitioner/ Petitioner/Plaintiff, the order of the trial Court, in dismissing the I.A. No. 700 of

2007 in O.S. No. 168 of 2007 for appointment of an Advocate Commissioner, is an unjust and manifestly erroneous one.

The Learned Counsel for the Revision Petitioner/Petitioner/ Plaintiff submits that entire suit claim is on the basis of existence of the well in the suit

property and to ascertain the factum of existence of the suit well, the Revision Petitioner/Plaintiff has taken out an application as per Order 26 Rule

9 of Code of Civil Procedure.

The Revision Petitioner, in the Memorandum of Grounds, has taken a plea that the reasoning of the trial Court in dismissing I.A. No. 700 of

2007 is against the settled principles laid down in Gollu Venkateswara Rao and Company and Ors. v. Bhogavalli Rajeswararao and another, AIR

2005 NOC 647 (AP); S. Muthuvelu and Another Vs. Kuttasavu Sethurayar and Others, ; A. Nagarajan Vs. A. Madhanakumar, ; Pormusamy

Pandaram Vs. The Salem Vaiyappamalai Jangamar Sangam, .

Lastly, it is the contention of the Learned Counsel for the Revision Petitioner/Petitioner/Plaintiff that the trial Court has failed to exercise its

jurisdiction in not allowing the I.A. No. 700 of 2007 filed for appointment of an Advocate Commissioner.

In response, it is the contention of the Learned Counsel for the Respondents/Defendants that the Petitioner/Plaintiff has No. right and not in

possession of the suit property. Further, in the suit property when there has been No. property as stated by the Revision Petitioner/ Plaintiff, then,

the appointment of Commissioner is an unnecessary one. The Survey No. 246/1 the land and the well belongs to the Respondents/Defendants,

who are in possession and enjoyment of the same. Hence, the application for appointment of an Advocate Commissioner is an unnecessary one.

In support of the contention that the best evidence in the case could be obtained only by means of appointment of an Advocate Commissioner,

the Learned Counsel for the Revision Petitioner/ Petitioner/Plaintiff cites the decision of Hon''ble Supreme Court in Vaithinattar and antoher v.

Sakkubai Ammal, AIR 2004 Ma 419 at page 422 & 423 wherein in paragraph 15 and 17, it is observed as follows:

.""15. In this situation if an answer has to be given to the substantial question of law framed, whether the lower Court has committed serious error in

finding that the Plaintiff was entitled to the suit property, especially accepting the contention of the defendants that the Plaintiff''s property was

situate South of the property purchased by the Defendants under Ex.B.10. From out of the study made into the facts and the circumstance

encircling the whole case as put up and projected on the part of the Respondent and resisted on the part of the Appellants throughout, one could

easily find out that since the dispute pertains to 0.05 cents of land said to have been belonging to the Plaintiff has been encroached upon by the

Defendants on ground and on the part of the Defendants denying that there is No. such encroachment, but to the purchase of the lands by them

they are only in possession and enjoyment of 0.21 cents and hence since not a bit more than what has been purchased is in their possession, the

case of the Defendants is that the Plaintiff is not entitled to anything more than what she is in possession of much less from these Defendants and,

therefore, it is glaring that it is the case wherein both the properties belonging to the Plaintiff and the Defendants and the adjoining lands to these

properties particularly surrounding the location of the suit property measuring 0.05 cents have to be measured with the assistance of a qualified

surveyor and with the help of the field Measurement Book and report and sketch obtained, besides examining the Commissioner or local revenue

authority. The Tahsildar or Revenue Inspector who should adduce evidence in the context of Field Measurement Book, only when the dispute

would be resolved clearly and since this legal necessity has not been complied with, both the lower Courts are not in a position to arrive at a more

clear decision even though both the Courts have completely searched out the facts pleaded and projected through oral and documentary evidence

by both parties they have their own reasons to arrive at dissenting judgments.

None, particularly, the Plaintiff who claims that the suit property islawfully belonging to her has been encroached upon by the Defendants and

annexed to their lands has filed anapplication for the appointment ofCommissioner to measure the propertyand submit a report with sketch, and

thisCourt wonders as to why the Plaintiff hasnot resorted to file an application noreven the Defendants thought of in thisline, as a result of which the

Courts haveto arrive at their own conclusions basedon the paltry evidence placed on recordand, therefore, since the best of evidencein case of

such nature could have been obtained only by appointment of aCommission and ascertainment of theextent of lands in possession andenjoyment of

each party to the contest,and since this legal necessity has notbeen complied with, the lower Courtshave not been in a position to act with

theconclusive proof which could be reliedupon and, therefore, it is only desirable todo this requirement which is absolutelynecessary in the case in

hand and,therefore, needless to mention that it is acase which has to be remanded back tothe trial Court for observing thisrequirement in the

circumstances of thecase and to give a decision based on suchreport obtained and hence, both thejudgments rendered by the trial Court andthe

first appellate Court have to be setaside and the case remanded for re-consideration and hence, the solesubstantial question of law has to

bedecided in the manner and with thefollowing result.

The Learned Counsel for the Revision Petitioner/Plaintiff relies on the decision in Gollu Venkateswara Rao and Company and Ors. v.

Bhogavalli Rajeswararao and another, AIR 2005 NOC 647 (AP) wherein it is held that ''the order in appointing the Advocate Commissioner to

note down physical features of property does not decide the rights of parties and further, the Defendant/Tenant has sufficient opportunity to

question the validity of the impugned order including the report of Advocate Commissioner, in case ultimately eviction proceedings are decided

against tenants based upon the report of Advocate Commissioner, in appeal preferred by them and as such, the order appointing the

Commissioner is not liable to be interfered with.''

The Learned Counsel for the Revision Petitioner/Plaintiff invites the attention of this Court to the decision in S. Muthuvelu and Another Vs.

Kuttasavu Sethurayar and Others, at page 750 wherein it is held, in para 10, as follows:

The Petitioners want that the property has to be measured commencing from the north, whereas, the Respondents would contend that the

measurement may commence from the south side. In order to put an end to the controversy between the parties and to identify the road as well as

the other details, it is just and necessary to appoint an Advocate Commissioner to carry out the job with the help of the District Surveyor and with

the assistance of Field Measurement Book of the locality.

If and when necessity arises, the Advocate Commissioner as well as the Surveyor can contact with the Police for giving protection. No. doubt, the

two reports and plan filed earlier have not been superseded. According to the parties, there are various versions relating to the location of 12 feet

wide road. In order to set-right the same and to give finality, new Advocate Commissioner has to be appointed with a specific direction to measure

the property and file a report accordingly.

He also seeks in aid of the decision of this Court in A. Nagarajan Vs. A. Madhanakumar, wherein it is held that ''when there is lack of

jurisdiction, erroneous assumption of jurisdiction, or where there is gross dereliction of duty, flagrant violation of law, or error of law apparent on

the face of the record or violation of principles of natural justice and finding is based on No. material, High Court can exercise supervisory

jurisdiction.''

He also cites the decision of this Court in Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam, AIR 1986 MAD 33,

wherein it is held that ''the order declining to appoint a Commissioner under Order 26, Rule 9 of CPC to make local investigation is ""case decided

and revisable u/s 115 of the Code of Civil Procedure.''

Admittedly, the Revision Petitioner/Plaintiff has filed the main Suit O.S. No. 168 of 2007 before the trial Court praying for the relief of

declaration of the right of the Petitioner/Plaintiff and for restoration of the well in its earlier position and also for directing the Respondents/

Defendants to hand over the possession of the same to the Revision Petitioner/Plaintiff.

The power of appointment of an Advocate Commissioner is a discretionary one, as opined by this Court. In the cause of action paragraph of

the Plaint in O.S. No. 168 of 2007 on the file of the trial Court, the Revision Petitioner/Plaintiff has stated that when he has purchased the suit

property, by means of a Sale Deed dated 08.11.2000 and when on 31.08.2002, the Respondents/Defendants in the suit well has made an attempt

to dump the sand and also from the Revision Petitioner/Plaintiff, the Respondents/Defendants have taken the possession of the suit property

unlawfully and also on 31.08.2002 in the suit property, they have dumped the sand and closed the well.

The Revision Petitioner/Petitioner/Plaintiff cannot either indulge in fishing expedition to procure evidence or to search for evidence. As a matter

of fact, he cannot collect evidence, when in fact he is to prove his case to the satisfaction of the trial Court. In I.A. No. 700 of 2007, the Revision

Petitioner/Petitioner/Plaintiff has, among other things, stated that the well in the suit property has been closed with the aid of surrounding sand

available from the upper portion of the suit property. Thereafter, the Respondents/ Defendants have planted small coconut trees. Also, upto the

extent of the well, it appears as if the sand has been dumped. Only after digging the well, the existence of well can be found out. Therefore, to

prove the case of the Petitioner/Plaintiff, a report and the plan are required to be filed, for which a Commissioner has to be appointed.

In the counter to I.A. No. 700 of 2007, the Respondents/ Defendants have stated that the land in Survey No. 246/1 does not either belong to

the Revision Petitioner/Plaintiff or to the predecessors. The Respondents/Defendants and their ancestors are in enjoyment of the Survey No. 246/1

continuously for well over 60 years. In Survey No. 246/1 there was No. well right at any point of time. The suit is not concerned with Survey No.

246/1.

A Court of Law cannot appoint a Commissioner for collecting evidence empowering him to visit the suit property and report as to which of the

parties to the suit was in possession of the property.

Where in a suit for possession, the purpose of appointment of a Commissioner was to collect evidence the rejection for appointment of

Commissioner is a proper one, as opined by this Court.

Per se a Commissioner''s report is not evidence. The object of Order 26 Rule 9 of CPC is not to assist a party to collect evidence where the

party can procure the same.

If the oral and documentary evidence are found enough to resolve the controversies in the suit, the rejection of application for appointment of a

Commissioner is a valid one, in the considered opinion of this Court.

A party can countermand the evidence of Commissioner''s report by letting in other evidence. A Local Commissioner can only report on

existing facts and not how they came about, as per decision of Hon''ble Supreme Court in Lekh Raj v. Muni Lal and Ors. (2001) 2 SCC 762.

In law, the rejection of an application for appointment of a Commissioner does not involve any decision of any issue or adjustment of any right.

As far as the present case is concerned, the Revision Petitioner/Petitioner/Plaintiff has purchased the suit property by means of registered Sale

Deed dated 08.11.2000. It is the case of the Revision Petitioner/Plaintiff that the Respondents/Defendants have trespassed into the suit property

on 31.08.2002 and made an endeavour to dump the sand etc. The case of the Revision Petitioner/ Plaintiff is that the well has been closed and

they have planted the coconut tree in the said place. From the date 31.08.20002, when the coconut trees have been planted by the

Respondents/Defendants, till this date nearly 9 years and one month has passed by. Removing the coconut trees, in the suit land, will certainly

cause damage to the suit property and the same will not be in the interest of either parties to the legal proceedings. It is open to the respective

parties to prove or disprove their case projected by them before the trial Court, by means of other evidence like, by letting in oral evidence about

the existence or otherwise of the well or to prove the same by means of any other Revenue Record, by Electricity Card for the well and pump-set,

if any, to be produced by the parties from the concerned Departments. The parties also can rely upon the Sale Deeds including the antecedent title

deeds to prove their case concerning the disputes/controversies involved between them in the main suit.

On going through the order of the trial Court in I.A. No. 700 of 2007, it is quite evident that the trial Court has come to the clear conclusion,

by exercising its judicial discretion, to the effect that the aspect of existence of well previously in the suit property or otherwise and that the same

has been closed by the Respondents/Defendants and they have planted the coconut trees can only be seen after the examination of witnesses and

documents and dismissed the application.

As already stated, the appointment of an Advocate Commissioner is a discretionary power of the trial Court. Also, the Commissioner cannot

be permitted to collect evidence which could be taken in Court. Viewed in that perspective, the exercise of discretion by the trial Court in

dismissing the I.A. No. 700 of 2007 praying for an appointment of an Advocate Commissioner cannot be found fault with. Consequently, the Civil

Revision Petition fails.

In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Consequently, connected Miscellaneous

Petition is also dismissed.