Settu vs Raja and Others

R. Banumathi, J.—This revision is preferred against the order made in I.A. No. 409 of 2001 in O.S. No. 344 of 2000 dated 7-12-2001 on

the file of District Munsif, Mannargudi, dismissing the application filed under Order 26 Rule 9 C.P.C. and declining to appoint the Advocate

Commissioner.

The brief facts necessitated for disposal of this revision petition could briefly be stated thus:-

The suit property relates to S.N. 2351/4 - 2333 sq.ft. with the house thereon bearing Door No. 30. The case of the Plaintiff is that the suit

property originally belonged to his mother by a sale deed dated 27-8-1949. The Plaintiff had purchased the same from his mother Sokkammal

under a sale deed dated 27-9-1989. Since then, the Plaintiff has been in possession and enjoyment of the same. Patta is also granted in the name

of the Plaintiff for the suit S. No. 2351/4. The Plaintiff has put up a house and he is paying the house tax. Earlier, one Rajamanickam and Mani

attempted to trespass into the suit property. Hence, the Plaintiff has filed O.S. No. 248 of 1990 and the same has been decreed in favour of the

Plaintiff on 21-01-1999. The Defendants have no manner of right or interest in the suit property; but they have claimed the pathway in the suit

property, which the Plaintiff has refused. Aggrieved over the same, the Defendants have attempted to trespass into the suit property, which was

prevented by the Plaintiff. Hence, the Plaintiff has filed the suit for permanent injunction.

Denying the averments in the plaint, the Defendants have filed the written statement admitting that the suit S. No. 2351/4B belongs to the

Plaintiff. According to the Defendants in S. No. 2349 Arunthathiar Colony is situated. On the Southern side of the suit property there is a pathway

leading to S. No. 2349. The Plaintiff had encroached about 1 1/2 feet on the Southern side and had put up construction in the encroached portion.

The act of the Plaintiff could not be prevented by the Village public. On inspecting the suit property the Revenue Officials and the Municipal

Commissioner had directed the Plaintiff to remove the encroachment. But the Plaintiff has not complied with the direction. With a view to give

trouble to the Defendants, the Plaintiff had filed the vexatious suit.

I.A. No. 409 of 2001 :- The Plaintiff has filed this application for the appointment of an Advocate Commissioner. In the supporting affidavit, the

Plaintiff has stated that appointment of an Advocate Commissioner is essential in view of the averments in the written statement. According to the

Revision Petitioner/Plaintiff, the Defendants have encroached to an extent of 1 1/2 feet in the pathway leading to S. No. 2349 and that the same

could be elicited only by the local inspection by appointing an Advocate Commissioner.

The application was resisted by the Respondents/ Defendants contending that the appointment of Commissioner is not necessitated .

Though the Defendants have filed counter statement, in the lower Court when the application came up for hearing the Defendants have stated no

objection for appointment of an Advocate Commissioner. However, the Defendants have added a rider that the description of the suit property is

wrong.

Upon consideration of the contentions of both parties, the learned District Munsif found that the suit property being in S. No. 2351/4B, the

Plaintiff cannot seek for appointment of Commissioner for S. No. 2349 and to find out, whether there is any encroachment in the pathway leading

to S. No. 2349.

Aggrieved over the dismissal of the application the Revision Petitioner/Plaintiff has preferred this revision. Assailing the impugned order the

learned counsel for the Revision Petitioner has submitted that to meet the plea set forth in the defence and to note whether there is encroachment in

S.N.2349 appointment of Commissioner is very much essential. The learned counsel has further submitted that though there was no objection by

the Defendants, the lower Court erroneously dismissed the application and prays for reversal of the impugned order.

The learned counsel for the Respondents/Defendants has submitted that the suit property relates to S. No. 2351/4B and that there is

encroachment of a portion of the pathway in the adjacent property. However, the learned counsel for the Respondents has submitted that there has

been some incorrect statements in the affidavit, on account of which, the trial Court has dismissed the application. However, the learned counsel

for the Respondents/Defendants has submitted that an Advocate Commissioner could be appointed issuing directions to the Advocate

Commissioner.

Upon consideration of the submissions, the only short point that arises for consideration is:-

Is not the appointment of an Advocate Commissioner is necessary to note down the physical features of the suit property and also to note down,

whether the house of the Plaintiff bearing Door No. 30 has encroached a portion of S. No. 2349 ?

By a perusal of the written statement, it is seen that the Defendants have taken the plea that adjacent to the suit property there is a pathway

leading to Arunthathiar Colony situated in S. No. 2349. It is further alleged that the Plaintiff has encroached a portion of the pathway and has put

up a construction leaving only a small space of width 1 1/2 feet and thereby, the Plaintiff has narrowed down the available pathway.

Thus the main point involved in the suit appears to be - Whether the Plaintiff has really encroached a portion of the pathway interfering with the

Defendants pathway right. Thus there is a bonafide dispute regarding the location of the house. Regarding this, evidence can be obtained only by

local inspection and measuring the suit property with the help of a surveyor. The Plaintiff having filed the suit for permanent injunction is bound to

prove his case. All opportunity must be afforded to him to produce the best possible evidence available. The Appointment of Commissioner and

the Commissioner''s report is one such mode of proof to elucidate the physical features and such other aspects. By appointment of an Advocate

Commissioner considerable oral evidence would be reduced. No serious prejudice would be caused to the Respondents/Defendants by

appointment of an Advocate Commissioner.

Only if the Advocate Commissioner is appointed, the encroachment or otherwise as alleged by the Defendants could be noted. In fact, in the

lower Court the Defendants themselves had no objection for appointment of an Advocate Commissioner and raised objection only regarding the

description of the property to be inspected by the Advocate Commissioner.

No doubt the suit property is in S. No. 2351/4B. The main dispute relates to the alleged encroachment in S. No. 2349, which is the subject

matter. Though S. No. 2349 is not the subject matter, in the light of the defence set forth by the Defendants the appointment of an Advocate

Commissioner is very much essential. The learned District Munsif was not right in declining to appoint an Advocate Commissioner. Hence, the

impugned order is liable to be set aside.

For the reasons stated above, the order made in I.A. No. 409 of 2001 in O.S. No. 344 of 2000 dated 7-12-2001 by the District Munsif,

Mannargudi, is set aside and this revision petition is allowed. Consequently, the connected C.M.P. No. 7702 of 2002 is closed. In the

circumstances of the case, there is no order as to costs. The trial Court is directed to appoint an Advocate Commissioner to note down the

physical features of the suit property in S. No. 2351/4B and measure the same with the help of the qualified surveyor and to note down the

measurement and encroachment (if any) and such other relevant aspects.