T Abdulla vs Aboobacker

C.S.Dias, J

Aggrieved by Ext.P11 order passed by the Court of the Munsiff, Manjeri in I.A.Nos.1/2020 and 1/2021 and 2/2021 in O.S.No.503/2015, the defendant in the suit has filed the original petition. The respondents are the plaintiffs in the suit.

The facts leading to the impugned order, in a nutshell, are: the respondents have filed the suit against the petitioner, for a decree of permanent prohibitory injunction. They have alleged that the petitioner has encroached into their property and is committing waste. The petitioner has resisted the suit through a detailed written statement. He has also filed his counter statement to the application for temporary injunction. An Advocate Commissioner was appointed, who conducted the local inspection and has filed Ext.P3 report. The petitioner objected to the report. Thereafter, the matter was remitted back to the Commissioner, who has filed Ext.P4 supplementary report. The said report was also been objected to by the petitioner. Again the matter was remitted to the Advocate Commissioner, who inspected the property on 26.10.2017 and had filed Ext.P5 report. As a dispute revolves on the measurements of the respective properties, it is necessary that the properties be measured with the aid of the survey plan. Therefore, the petitioner again filed his objection to Ext.P5 report. The survey plan was prepared without referring to the whole survey details. The petitioner has produced the survey plan issued by the revenue authorities. The petitioner felt that the Advocate Commissioner is an in experienced person and not an expert. Therefore, the petitioner filed Ext.P8 objection to Ext.P5 report, Ext.P9 application to set aside the Ext.P5 report and Ext.P10 application to summon the witnesses shown in the list. However, the court below, by the impugned Ext.P11 order, has dismissed the above applications. Ext.P11 is erroneous and wrong. Hence, the original petition.

Heard; Sri.K.Dilip, the learned counsel appearing for the petitioner.

The point is whether there is any error in Ext.P11 order.

The suit is filed in the year 2015, for a decree of permanent prohibitory injunction. The court below has passed an order of temporary injunction as per its order in I.A.No.3043/2015. Admittedly, an Advocate Commissioner was appointed, who filed Ext.P3 report as early as on 04.01.2016. Thereafter, at the instance of the petitioner, the report was remitted back to the same Advocate Commissioner, who filed Ext.P4 supplementary report. Again, the petitioner was dissatisfied with Ext.P4 report and the matter was again remitted back to the Commissioner, who has filed Ext.P5 supplementary report. Even now, the petitioner is dissatisfied with the three reports that are on record.

The petitioner's case is that the Advocate Commissioner is an inexperienced person and the measurements have not been carried out as per the old survey details and re-survey details. Therefore, the reports have to be remitted back again to the Advocate Commissioner.

The court below, after analysing the objections raised by the petitioner, found that the Advocate Commissioner has clearly demarcated the properties on its four sides and the plaint schedule property is situated on an higher level than that of the petitioner. Furthermore, as the suit is for an injunction simpliciter, the same has to be decided only on the basis of possession and not on the strength of the survey details. Accordingly, the court below, by the impugned order, rejected the above applications.

It is to be borne in mind that the suit is of the year 2015, that too for an injunction simpliciter. There are already three reports on record. An Advocate Commissioner is an officer of the Court and not an agent of the party. The petitioner cannot aspire for a tailor made report to his liking. The court below has not found any necessity to further remit the report. I do not find that the court below has overstepped its authority or powers in passing the impugned Ext.11 order. Nevertheless, I make it clear that the petitioner would be at liberty to summon and cross-examine the Advocate Commissioner, at the appropriate stage of trial and discredit the reports that are on record. If the court below finds, that there are any discrepancies in the reports as alleged by the petitioner during the cross-examination of the Commissioner, the court below would be at liberty to remit the commission report back to the Advocate Commissioner and seek for a supplementary report, if so warranted. The original petition is dismissed with the above observations.