Selvi vs Dorathy Paul

M. Venugopal, J.—The Petitioner/Respondent/Defendant has preferred the present Civil Revision Petition, being aggrieved, as against the

order dated 07.12.2010 in I.A. No. 751 of 2010 in O.S. No. 282 of 2007 passed by the Learned District Munsif, Poonamallee. The Learned

District Munsif, Poonamallee, while passing the impugned order in I.A. No. 751 of 2010 in O.S. No. 282 of 2007, on 07.12.2010, has, among

other things, observed that ''... The taluk surveyor has given his report that S. No. 7 was subdivided into 56A, B, D, D, and E. The S. No. 56/A

stands in the name of respondent''s vendor Jayaram Naidu. The FMB sketch and Adangal shows the alleged sub division. From the pleads and

materials available on records it is understood that the suit property was identified to be situated in S. No. 7/56 and not in S. No. 7/7. Even then it

is unknown whether there is an existence of land in S. No. 7/7/ or not?. If S. No. 7 was sub divided as 56 A, B, C, D and E, what is the position

of S. No. 7/7. In S. No. 7 whether the S. No. 7/7 is part and parcel, what S. No. 7/7 is in existence are all now the question that arises in the mind

of this Court. Like S. No. 7 was identified as S. No. 56 A, B, C, D and E. It is essential to identify S. No. 7/7 and it''s existence that was

enumerated in the the petitioner''s deed. Unless this was elucidated to this court there would be no proper rendition of justice. The dispute involved

between the litigants will not be solved. In the interest of justice and to avoid multiplicity of proceeding, the Advocate Commissioner''s warrant has

been remitted back to the same Advocate Commissioner to find out the S. No. 7/7 in the suit village'' and resultantly, allowed the application giving

liberty to the Advocate Commissioner to avail the help of Taluk Surveyor and fixed the Commissioner''s remuneration at Rs. 1,750/-.

According to the Learned Counsel for the Petitioner/Defendant, the trial Court has failed to take note of the fact that the main suit in O.S. No.

282 of 2007 filed by the Respondent/Plaintiff is only for bare injunction and the Respondent/Plaintiff cannot extend or enlarge the purview of the

suit by filing the second Application No. 751 of 2010 praying for appointment of an Advocate Commissioner.

The Learned Counsel for the Petitioner/Defendant contends that the Advocate Commissioner filed his report with the help of Surveyor''s Plan in

earlier I.A. No. 1320 of 2007 [filed by the Petitioner/ /Defendant] and in the second I.A. No. 751 of 2010, an endeavour has been made to remit

back the Commissioner''s warrant to undo the earlier report filed by the Advocate Commissioner. As such, the second I.A. No. 751 of 2010 is an

abuse and misuse of process of the Court.

Yet another plea taken on behalf of the Petitioner/Defendant is that the Respondent/Plaintiff has, in the main suit, depicted the suit property as a

vacant land and subsequent to the filing of the said suit as stealthily and unlawfully put up the construction and presently has come forward with I.A.

No. 751 of 2010 to undo the earlier Advocate Commissioner''s Report filed along with Taluk Surveyor''s Report.

Conversely, it is the submission of the Learned Counsel for the Respondent/Plaintiff [Petitioner in I.A. No. 751/2010] that the Surveyor, inspite

of the requests made by the Respondent/Plaintiff''s counsel, had blatantly refused to physically survey the lands and to identify her vendor''s 30

cents of land and further he was adamant, pre-determined and biased to show only 24 cents of Defendant''s Vendor that too without any survey

worth its name. Moreover, the Surveyor referred to his Field Map with sub-divisions, brought and just like that showed only 24 cents which

included the suit property and just 2 properties on the North including the 15 ft. wide street ""which were subdivided as 7/56 A to E "" but cunningly

and deliberately refused to identify the Respondent/Plaintiff''s vendor''s 30 cents as per his Sale Deed which include Sy. No. 7/56A to E and 7/57

and 7/58'' inspite of Court''s specific directions in the Commission Warrant.

Continuing further, it is the stand taken on behalf of the Respondent/Plaintiff that inspite of Advocate Commissioner instructing the Surveyor, the

Surveyor adamantly refused to do survey and identify both parties Vendors lands as per respective deeds and refused to consider the trial Court''s

order to locate and fix those lands; except just referring to his Field Map.

The Learned Counsel for the Respondent/Plaintiff submits that the earlier Commissioner''s Report and the Biased Surveyor''s Plan may be set

aside and the Commission Warrant may be remitted back to some other Advocate, for its proper and purposeful execution with a specific

direction to carry out survey as per Court directions and also in deference to the title Title Deeds of Vendors of both parties.

It is to be noted that the trial Court has remitted back the Commissioner''s warrant to the same Advocate Commissioner to find out the S. No.

7/7 in the suit village.

It is not in dispute that while the trial Court has appointed an Advocate Commissioner earlier to locate and identify the respective properties of

land as per parties title deeds and at this stage, it is useful for this Court to extract the portion of the order which runs as under:

[1] He shall peruse the documents filed by both sides and identify the property of Petitioner as well as the Respondent in relation thereto [2] He

shall specifically note down the Survey No. of the Petitioner and the Respondent''s properties and the extent of over-lapping if any should be

specifically indicated in his Report.

Admittedly, the Respondent/Plaintiff filed the main suit O.S. No. 282 of 2007 on the file of trial Court seeking the relief of permanent injunction

restraining the Defendant [Revision Petitioner], her men, agent, servants or any persons claiming under her from trespassing into the suit property

and thereby from interfering with the Plaintiff''s peaceful possession [Respondent in Revision] and enjoyment of the suit property.

In the Written Statement filed by the Defendant (Revision Petitioner), it is mentioned that the lands measuring 0.44.0 hectare in S. No. 6/1 and

0.09.5 hectare in S. No. 7/56 was owned by one K.S. Jayarama Naidu and that he was in possession and enjoyment of the said land and the

revenue records in respect of the said lands were wrongly transferred in the name of Chitukattan and Hemalatha Somani. Further, it is also stated

that the said K.S. Jayarama applied to the Tahsildar, Poonamallee to issue patta to him and mutate the revenue records in his name and after

conducting a detailed enquiry and also after verifying the documents of the parties, the Tahsildar cancelled the patta in the name of Chithukattan

and Hemalatha Somani in the year 2000 and then, the patta was issued in favour of the said Jayarama after mutating the revenue records. Thus,

K.S. Jayarama Naidu was the absolute owner of the aforesaid lands.

Also, in the Written Statement filed by the Defendant/Petitioner, it is mentioned that K.S. Jayarama Naidu sold the house site measuring 2834

Sq. ft. comprised in S. No. 7/56 situated in Thirunindravur village to her through his power of attorney agent M. Raji under the registered sale

deed dated 05.11.2001 and that the said property is the suit property and she alone is the owner of the same. Furthermore, she has applied for

patta and after conducting an enquiry, the revenue authorities prepared to issue patta to her. Only at that point of time, the Respondent/Plaintiff has

filed the present suit for permanent injunction which is not maintainable in law.

The Advocate Commissioner, in his First Report in I.A. No. 1320 of 2007 in the main suit, has, among other things, stated that in Serial No.

10 to 12 as follows:

As per the Petitioner''s document No. 7, dt: 05.11.2001, Doc. No. 3160/2001, reveals Survey No. 7/56, in Patta No. 5093, Property

standing in the name of Mr. Jayarama Naidu.

As per the Respondent''s document No. 1, dt. 12.10.1982, Doc. No. 3833/1982, reveals a portion of the property Survey No. 7/7, Property

conveyed by Mr. T. Dhanapal and others in favour of Mr. Albert. (reveals Patta No. 380 standing in the name of Mr. T. Dhanapal).

As per the Respondent''s document No. 1, dt 11.11.1988, Doc. No. 8978/1988, reveals a portion of the property Survey No. 7/7, Property

conveyed by Mr. Albert in favour of Mrs. Dorathi Paul.

Also, in Serial No. 6, the Commissioner has stated that ''As per the Petitioner''s document No. 3, dt: 29.01.1969 Doc. No. 233 of 1969, there is

no such survey No. 7/7''.

Order 26 Rule 9 of Civil Procedure Code, the power of a Court of Law to appoint an Advocate Commissioner for local inspection is

discretionary in character. Further, a Commissioner can only be appointed to make local investigation in order to investigate the materials or facts

which are seen in the property and to submit his report to the Court. The aim of the commission under Order 26 Rule 9 of CPC is not to collect

evidence which can be taken in Court, but to secure evidence for enlightening matters which are local in nature. Finally, it is within the discretion of

the Court to issue the commission or not.

At this stage, this Court cites the following decisions, in furtherance of substantial cause of justice:

(a) In the decision Haryana Waqf Board Vs. Shanti Sarup and Others, , the Hon''ble Supreme Court has held as under:

Admittedly, in this case, an application was filed under Order 26 Rule 9 of the CPC which was rejected by the trial Court but in view of the fact

that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local

Commissioner under Order 26 Rule 9 C.P.C.

(b) In the decision Legal representatives of Manohar (Smt. Shamlata Raut, Vijayant Raut and Sonali Raut) Vs. Vishweshwar Tukaram Giripunje

(Legal representatives Smt. Sushilabai Naik and Others), it is held as follows:

6... In order that the suit is finally and effectually decided, it is, therefore, desirable to have measurement of both the sites which measurement can

be undertaken by Surveyor from the City Survey Department. It is, therefore, now necessary to remand the matter back to the trial Court.

1) The appeal is, therefore, allowed.

2) The judgments and decrees passed by the Courts below are set aside.

3) The matter stands remanded to the trial for fresh decision. The trial Court shall appoint Surveyor/Commissioner from the City Survey

Department to measure the sites of plaintiff and defendant both.

4) While making an appointment of the Commissioner, the trial Court shall issue instructions to the measurer to measure the land according to the

observations in the preceding paragraph of this judgment and obtain the correct measurement map showing encroachment, if any, from the said

Commissioner.

(c) In the decision Mohammed Mahmood Ali Vs. Municipal Council and Others, it is held that ''When the dispute is boundary dispute, it would be

just and proper to appoint a Commissioner to locate the land by taking measurements with reference to revenue records''.

(d) In the decision Madhu Sudan Pradhan and Others Vs. Santosh Kumar Das, , it is, inter alia, observed that ''In title suit for specific performance

of contract, the Plaintiff can adduce evidence relating to the claim of delivery of possession of suit land and damages before trial Court and the

deputation of Survey Knowing Commissioner would amount to collecting evidence on behalf of plaintiff''.

(e) In the decision Suryabhan Singh V. State of M.P., 2006 A I H C 2928 at page 2929, it is held that ''in relation to the dispute regarding

possession of land, the Court after satisfaction that appointment of Commissioner was not necessary under circumstances and application was an

after thought to collect evidence, dismissed the application''.

(f) In the decision, Chunnilal V. Ramchandra, 2002 (1) MPWN Note 105, wherein it is held that ''a commission cannot be issued to ascertain

actual possession over disputed property, evidence cannot be collected by issuance of commission, that such an issue can be decided by the Court

itself on the basis of evidence''.

(g) In the decision Babu Khan V. Kaptan Singh, 1980 (2) MPWN 261, it is observed as under:

The Court cannot delegate to the Commissioner the trial of any material issue which is itself bound to try. In other words, a Judge cannot depute to

a Commissioner the functions which he can and should discharge himself. When the Court is faced with the problem as to who is in possession of

the disputed immovable property, the problem has to be solved by the Court on the basis of the evidence on record.

As far as the present case is concerned, it is to be borne in mind that the main suit filed by the Respondent/Plaintiff is one for permanent

injunction restraining the Defendant (Revision Petitioner), men, agent etc. from trespassing into the suit property and thereby interfering with her

peaceful possession. Earlier, I.A. No. 1320 of 2007 has been filed on 09.08.2007 by the Revision Petitioner/Defendant [as Petitioner before the

trial Court] praying for an appointment of an Advocate Commissioner with the assistance of a Taluk Surveyor to find out the Respondent/Plaintiff''s

property as well as her property and to file a report with plan. Accordingly, the Advocate Commissioner has filed his report. Subsequently, I.A.

No. 407 of 2009 filed by the Respondent/Plaintiff praying for issuance of a direction to the Advocate Commissioner and also a specific direction

to issue to the Surveyor to do a physical survey and to locate and identify without keeping in mind and without being prejudiced by the recent sub-

divisions as Survey No. 7/56 in his Field Map the Plaintiff''s vendor''s 25 + 5 = (30 cents) as per Plaintiff''s title deeds and as per the clear cut

boundaries given therein. The said I.A. No. 407 of 2009 is pending as on date and no counter has been filed by the Revision Petitioner/Defendant.

During the pendency of I.A. No. 407 of 2009, the Respondent/Plaintiff has filed I.A. No. 751 of 2010 praying for setting aside the

Commissioner''s Report and Biased Surveyor''s Plan and has sought for passing of an order in regard to the remitting back the Commission

Warrant to some other Advocate for its proper and purposeful execution etc.

The order passed in I.A. No. 751 of 2010 dated 07.12.2010, in remitting back to the Commissioner''s Warrant to the same Advocate

Commissioner to find out the S. No. 7/7 in the suit village, has been challenged by the Petitioner/Defendant''s side.

Ordinarily, in a suit for permanent injunction or for seeking the relief of perpetual injunction, the Court discourages an interlocutory application

under Order 26 Rule 9 of CPC praying for appointment of an Advocate Commissioner for probing the possession of the properties at the

threshold of the suit.

In this connection, this Court aptly points out that in a suit for permanent injunction, the Plaintiff is to prove lawful possession in respect of the

suit property. The nature of the property is neither relevant nor significant in the context of the relief claimed, as per the decision in Arredla Ram

Reddy, Arredla Venkat Reddy and Arredla Sudhakar Reddy Vs. Arredla Alivelamma Reddy,

It is open to the parties to countermand the evidence of an Advocate Commissioner Report by adducing any other viable evidence, as opined

by this Court.

When both parties are claiming possession, the question of possession generally cannot be ascertained by appointment of Local

Commissioner. It is for the parties to lead necessary evidence to establish possession, in the considered opinion of this Court.

This Court aptly points out the decision in Bhagwat Math V. Madhav Memorial Pathagar and others, 2006 9 SCC 221 wherein, in paragraph

4, it is, inter alia, held that ''Without expressing any doubt on the independence and integrity of the Commissioner already appointed, the trial Court

should have allowed the objection raised by the Appellant and appointed any other neutral and independent person not connected, in any manner,

with either of the parties and possessing knowledge of survey as Commissioner for spot inspection''.

In law, the Report of Commissioner is not per se evidence, although his report is part of the record. Also, that an Advocate Commissioner''s

Report cannot be the basis for ascertaining the factum of one''s possession. In reality, the burden is on the Respondent/ Plaintiff irrespective of the

Commissioner''s Report to prove the factum of possession in a suit for injunction. If the parties to the litigation disputes the correctness of the

Advocate Commissioner''s Report examining the Commissioner would be very much necessary, in the considered opinion of this Court.

When Commissioner is appointed to locate the disputed land, he should carry out the measurements from both sides. In the absence of

boundary marks, he should find out the correct boundaries of the nearby survey numbers and after ascertaining boundaries of such lands, three

sides of disputed property, and to find out the exact location of disputed land as per the decision in Jagdish Prasad V. State of M.P. and another,

AIR 2009 (NOC) 2008 (M.P.) (DB).

In law, the evidence of an Advocate Commissioner is not binding on Court and in fact, his report is to be appreciated along with other

evidence available on record in a given case.

On a careful consideration of the respective contentions, this Court is of the considered view that strictly speaking the Revision

Petitioner/Defendant initially during August 2007 ought not to have filed I.A. No. 1320 of 2007 praying for appointment of an Advocate

Commissioner with the assistance of a Taluk Surveyor to find out the Respondent/Plaintiff''s property as well as her property and to file a report.

Likewise, when I.A. No. 407 of 2009 is kept pending (without any orders being passed), then, it is for the Respondent/Plaintiff to insist upon the

trial Court to take up the said application for passing an appropriate order in regard to the appointment of an Advocate Commissioner. Without

resorting to such a course, the Respondent/ Plaintiff has filed I.A. No. 751 of 2010 seeking to set aside the first Commissioner''s Report and the

Biased Surveyor''s Plan and has also sought for remitting back the Commissioner''s warrant to some other Advocate.

Even though the trial Court, ultimately, has passed an order on 07.12.2010 in I.A. No. 751 of 2010 in remitting back the Advocate

Commissioner''s Warrant to the same Advocate to find out the S. No. 7/7 in the suit village, in view of the objection taken by the Respondent/

Plaintiff''s side that the survey commission has not served the purpose and the surveyor refused to locate and fix her 30 cents etc., this Court,

without expressing any opinion on the merits of the earlier Commissioner''s Report and the Survey Plan submitted by the Surveyor, to prevent an

aberration of justice, sets aside the order in I.A. No. 751 of 2010 in O.S. No. 282 of 2007 dated 07.12.2010 passed by the trial Court.

Consequently, the trial Court is directed to restore I.A. No. 751 of 2010 in O.S. No. 282 of 2007 to its file and after hearing the arguments, it is

open to the trial Court to consider the desirability of appointing any other Advocate Commissioner, within a period of two weeks from the date of

receipt of copy of this order, other than the earlier Advocate Commissioner who submitted his first report unrelated/unconnected by either of the

parties [if situation so warrants].

In the event of trial Court coming to the conclusion to appoint a fresh Advocate Commissioner, it shall fix his remuneration at his discretion.

Liberty may be granted to the new Advocate Commissioner [if so appointed] to take the assistance of a Taluk Surveyor [other than the earlier

Surveyor who submitted his plan in I.A. No. 1320 of 2007] and in this regard, it is open to the trial Court to address a communication to the

concerned revenue authorities to take the assistance of new Surveyor/different Surveyor. After obtaining the fresh Commissioner''s Report together

with Survey Plan/Map, the trial Court shall provide opportunities to either parties to file or raise objections in regard to the fresh Commissioner''s

Report and it is open to the parties to summon the fresh Advocate Commissioner and the Surveyor and cross examine them and to consider the

said evidence along with oral and documentary evidence to be adduced by the witnesses on either side at the time of final hearing of the suit. If

situation so warrants, the earlier Advocate Commissioner and the Surveyor, who filed his first Report and Plan, may also be examined by the

parties in accordance with law as a witness before the trial Court in the main suit. In as much as the suit itself is for permanent injunction, after

obtaining the fresh Advocate Commissioner''s Report with Survey Plan etc. if any [including the objections if any to be filed by the respective

parties], the trial Court shall do well to dispose of the main suit in O.S. No. 282 of 2007 within a period of five months from the date of receipt of

copy of this order. Accordingly, the Civil Revision Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.