Thangaiyan vs Indirani

R. Karuppiah, J.—The appellant, who is the defendant in the above suit in O.S. No. 243 of 2003 filed this appeal as against the remand

order passed in the judgment and decree in A.S. No. 227 of 2005, dated 18.10.2006 by the Additional Sub-ordinate Judge(FAC),

Kumbakonam. The respondent/Plaintiff filed a suit for permanent injunction and in the plaint itself, it is stated that the suit property is originally

belonged to the plaintiff''s father Palanivelu and Palanivelu in turn executed a ''Will'' bequeathing the property in favour of the plaintiff on

06.05.1981 and Palanivelu died on 11.12.1985 and the plaintiff succeeded the property and the suit property was in exclusive possession and

enjoyment of the plaintiff. The Plaintiff further averred in the plaint that in the said property, he has constructed a house in the year 1998 and is in

actual possession of the same by paying house-tax and the defendant having his property at the west of the suit property had make an attempt to

encroach the backyard of the plaintiff''s property on 29.06.2003 and hence, filed a suit for injunction.

The defendant filed a written statement in which he has denied all the allegations in the plaint and stated that the plaintiff was not in possession

and enjoyment of the suit property as on the date of plaint and also denied the alleged ''Will'' executed by her father on 06.08.1981 by stating that

the ''Will'' is not admissible in law. According to the defendant, the suit property was divided between Mariyayee, wife of Palanivelu and Indirani,

wife of one Rajangam and Thiyagarajan during the Village Panchayat on 19.12.1985. The defendant has further contended that the Plaintiff has

created and fabricated the records. Further the suit property is in possession of the defendant and the plaintiff without asking for declaration, is not

entitled to the relief of injunction and the suit property was also not properly valued. Further this plaintiff has not approached this Court with clean

hands and prayed for the dismissal of the appeal.

The trial Court has framed three issues and on the side of the plaintiff examined four witnesses as P.W. 1 to P.W. 4 and marked five documents

as Ex. A1 to Ex. A5. On the side of the defendant, three witnesses were examined as D.W. 1 to D.W. 3 and five documents were marked as Ex.

B1 to Ex. B5, and Advocate Commissioner''s report and plan were marked as Ex. C1 and Ex. C2.

The trial Court has considered the above said oral and documentary evidence adduced on both sides and finally dismissed the suit. Aggrieved

by the finding of the trial Court, the Plaintiff filed an appeal in A.S. No. 227 of 2005 before the Additional Sub-ordinate Judge, Kumbakonam. The

First Appellate Court after hearing both sides and on perusal of the entire oral and documentary evidence adduced on both sides and considering

the fact that the Advocate Commissioner appointed during the proceedings pending before the Trial Court and he visited the suit property and filed

a report only about the superstructure in the suit property and admittedly, the Advocate Commissioner has not measured the property claimed by

both sides.

In the above said circumstances, the First Appellate Court held that the defendant''s claim an extent of 9.5 acres as per Ex. B3 and Ex. B4

documents. The plaintiff claimed an extent of 13 cents in the same suit survey number. But the Commissioner''s report and plan only explained the

physical features of the suit property and not the extent. In the said circumstances, the Commissioner''s plan and report is necessary and on that

ground alone, the First Appellate Court has set aside the decree and judgment passed by the trial Court and remitted the matter back to Trial

Court to appoint an Advocate Commissioner and directed to measure the property and also regarding the possession with the help of a Surveyor.

The respondent/Plaintiff though appeared through counsel before this Court, but not appeared for several hearings and hence heard the

submissions made by learned counsel for the appellant.

The learned counsel for the appellant mainly submitted that he has no objection to appoint an Advocate Commissioner to measure the suit

property of the plaintiff and defendant with the help of a Surveyor as directed by the First Appellate Court, but the only grievance of the appellant

is that on the sole ground (i.e.,) to appoint an Advocate Commissioner to measure the suit property, the suit need not be remitted back to the trial

Court and a Commissioner may be appointed by the First Appellate Court itself and therefore challenged the order of remand passed by the First

Appellate Court.

A careful reading of the judgment and decree of the First Appellate Court would reveal that the First Appellate Court has remitted the suit to the

trial Court only for the purpose of appointment of an Advocate Commissioner. An Advocate Commissioner can be appointed in the First

Appellate Court itself and directed to file a report and plan after measuring the suit properties with the help of a Surveyor and if the First Appellate

Court feels that after filing of the Commissioner''s report and plan, both parties wants to file any additional pleadings and also wants to adduce any

oral or documentary evidence, then the First Appellate Court can decide whether the appeal has to be remitted back to the trial Court. But before

filing the Commissioner''s report and plan, the First Appellate Court has remitted the case to the trial Court only for the purpose of appointment of

an Advocate Commissioner and to file a report and plan. As rightly contended by the learned counsel for the appellant, the first appellate Court

can also direct the trial Court to appoint an Advocate Commissioner and obtain the Commissioner report and plan and received the same by the

First Appellate Court and pronounced the judgment on the basis of the Commissioner''s report and plan.

In the above said circumstances, this Court is of the view that the remand order passed by the First Appellate Court only for the purpose of

appointing an Advocate Commissioner is not valid in law as rightly contended by the learned counsel for the appellant. Therefore the Judgment and

decree passed by the First Appellate Court in which it had remanded the suit to the trial Court is set aside and this Court directed the First

Appellate Court to restore the appeal and also directed to appoint an Advocate Commissioner to measure the suit property of the plaintiff and

defendant with the help of a Surveyor and on the basis of the Commissioner''s report and plan disposed of the appeal on merits.

With the above said observation the judgment and decree passed by the Additional Subordinate Judge(FAC), Kumbakonam, made in A.S.

No. 227 of 2005, dated 18.10.2006 is set aside and the First Appellate Court is directed to appoint an Advocate Commissioner to measure the

property of the plaintiff and defendant with the help of a Surveyor and obtained Commissioner report and plan and dispose of the above said

appeal on merits. The Civil Miscellaneous Appeal is ordered accordingly. Consequently, connected Miscellaneous Petition is closed. No costs.