Madras High Court
G. Valarmathi vs The Municipal Commissioner on 3 June, 2024
Author: J. Nisha Banu
Bench: J.Nisha Banu
C.R.P.No.36 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 16.02.2024
PRONOUNCED ON : 03.06.2024
CORAM:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.R.P.No.36 of 2022
and C.M.P.No.23 of 2022
G. Valarmathi .... Petitioner
vs
1. The Municipal Commissioner,
Ayyanar Kovil Street,
Vridhachalam Town and Taluk,
Cuddalore District.
2. The Thasildar,
Cuddalore Road,
Vridhachalam Town and Taluk,
Cuddalore District.
3. The Revenue Divisional Officer,
Cuddalore Road,
Vridhachalam Town and Taluk,
Cuddalore District.
4. The District Collector,
Semmandalam, Cuddalore District.
5. The District Revenue Officer,
O/o Collectorate, Cuddalore District. ...Respondents
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Page No.1 of 11
C.R.P.No.36 of 2022
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
India, against the Fair and Decreetal order dated 29.04.2021 made in I.A.
No.374 of 2019 in O.S.No.263 of 2019 on the file of I Additional District
Munsif Court, Virdhachalam, Cuddalore District.
For Petitioner : Mr.C.Prabakaran
For R-1 : Mr. D. Gopal, Government Advocate
For RR 2 to 5 : Dr.S.Suriya,
Addl. Govt. Pleader (CS)
******
ORDER
Challenging the fair and decreetal order, dated 29.04.2021 made in
I.A.No.374 of 2019 in O.S.No.263 of 2019 on the file of I Additional District
Munsif Court, Virdhachalam, Cuddalore District, the petitioner has preferred
the present civil revision petition.
2. According to the learned counsel for the revision petitioner, I.A.
No.374 of 2019 was filed under Order XXVI Rule 9 of the Civil Procedure
Code seeking for the appointment of Advocate Commissioner to measure the
suit property with the help of the Surveyor pertaining to the physical features
of the suit property and to file a report with sketch.
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3. It is averred in the petition that earlier the petitioner's son
G. Sivasankaran had purchased the petition property from one power agent
named Leelavathy, through a deed of sale registered on 24.01.2002 and he
was in possession and enjoyment of the same. On 25.09.2003, the petitioner
got the property executed in his favour through the 2nd respondent/ Thasildar,
Cuddalore Distict. After a long period of 15 years from the date of the
aforesaid purchase and more than a lapse of 12 years, the 1st respondent
herein had issued a patta by revising the earlier measurements of the land , i.e.
the area of the petition property has been assigned as 00777 sq. mt. by
reducing an area of 00023 sq.mt from it, instead of the original 00800 sq.mt,
wherein the first respondent has stated that the earlier measurements were
wrongly analysed based on FMB sketch.
4. According to the learned counsel for the petitioner, neither the
petitioner nor his son G.Sivasankaran were given any notice in this regard. The
Revenue Authorities have granted patta on 25.09.2003 and likewise the 1st
respondent also without mentioning any diminution in the area of the property,
has granted DTCP approval on 11.12.2006. Suddenly on 26.02.2018 without
any spot inspection or measuring the property, the 1st respondent, under the
influence of some local people and revenue officials, has issued forged patta
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document dated 26.02.2018. In this regard, the petitioner has issued a notice
to the 1st respondent on 17.06.2019, but there is no response from the
respondents side. Hence, the petitioner was constrained to file a suit in
O.S.No.263/2019 for issuance of patta with correct measurements, based on
the sale deed and patta issued on 26.09.2003 by the Revenue Authorities.
5. Pending suit, the petitioner preferred an interlocutory application in
I.A.No.374/2019 in O.S.No.263/2019 seeking for the appointment of
Advocate Commissioner to inspect the property subject to issue and to file
necessary and reasonable report and a map of the property with appropriate
measures and structures with the help of a surveyor, but the same came to be
dismissed by the Court below vide order dated 29.04.2021. Aggrieved against
the said order of dismissal, the present revision petition has been filed.
6. The main contention of the revision petitioner is that the measurement
is the only way to decide the actual lis in the suit. As per Order XXVI Rule 9
of the Civil Procedure Code, conducting local investigation regarding the suit
property and finding out the physical features in order to decide the actual lis
between the parties of the suit is very much essential, which the Court below
failed to consider. He also stated that the learned Judge misconstrued the
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purpose of the application filed by the petitioner and considered the same as a
process for collection of evidence. But according to the petitioner, already
patta has been granted in favour of the petitioner and the subsequent patta
which was issued thereafter, was with lesser extent of area, without
conducting field inspection and earlier measurements. Hence, the learned
counsel for the revision petitioner prayed to set aside the impugned order made
in I.A.No.374 of 2019 in O.S.No.263 of 2019 on the file of I Additional
District Munsif Court, Virdhachalam, Cuddalore District and thereby allow
the revision petition.
7. Per contra, the learned Additional Government Pleader appearing for
the respondents strongly objected and pointed out that the petition is
unsustainable in law and equity. The petitioner has to prove the petitioner's
case by submitting original documents related to the petitioner's property such
as birth certificate, sale deed, patta, chitta, adangal, ration card, aadhaar card
etc, but he has approached this Court by way of filing this revision petition
without any proof, which is to be dismissed with costs. Thelearned Additional
Government Pleader further submitted that the 1st respondent has served
summons upon the petitioner to appear on 25.02.2021 regarding the dispute,
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but he failed to appear for the same. Hence, the learned Additional
Government Pleader prayed for dismissal of the revision.
8. Heard the learned counsel for the petitioner as well as the learned
Additional Government Pleader appearing for the respondents and perused the
materials placed before this Court.
9. The learned Judge, trial Court found that the property in dispute and
possession in dispute should be established through appropriate witnesses and
evidence only and not by appointing Advocate Commissioner, whereas, this
Court in Pillaiyar v. Ganesan and another, reported in 1999 MLJ (Supp.)
432, by invoking Order 26 Rule 9 of the Code of Civil Procedure for the
appointment of an Advocate Commissioner has held that, “No doubt, there can
be no appointment of Commissioner for collecting evidence or gathering
materials. However, the object of a Commission under Order 26 Rule 9 of the
Code of Civil Procedure is not to collect evidence, which has to be done only
by the Court, but for elucidating matters which are local in character, which
can be done only by local investigation at the spot.
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10. Similarly, in Sivagurunathan Vs. Ramalingam and Others
reported in (2005) 3 MLJ 525, this Court has held as follows:
When the controversy between the parties is about
the area of the land or the identification or the location of
the land, local investigation by a commissioner is
necessary. It would clarify the location and extent in
which the plaintiff is in possession and would explain any
doubtful points on the evidence on record. When there is
a dispute over the extent, measuring of the suit property
with the help of surveyor and the plan thereon would
considerably reduce the oral evidence. The object of local
investigation is to obtain evidence which could be based
on only from the spot and the inspection. Report of the
advocate Commissioner would enable the Court to
properly and correctly understand and assess the
evidence on record in resolving the contentious points.”
11. In the present case on hand, it is seen that a real dispute had arisen
in view of the measurement of the petitioner's land, wherein the area of the
petition property has been assigned as 00777 sq. mt. by reducing an area of
00023 sq.mt from the original area of 00800 sq.mt by the first respondent by
stating that the area was wrongly ascertained based on the FMB sketch.
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Therefore, there is an issue which had arisen that requires elucidation and this
is local in character and can only be done by local investigation at the spot.
The assistance of a Taluk Surveyor would certainly clear the doubt whether
the property conveyed to the petitioner has the total area of 00777 sq. mt. or
the original area of 00800 sq.mt. It can be easily verified by looking to the
boundaries found in the documents of sale. Identification of the property can
only be done by a Taluk Surveyor and the presence of an Advocate
Commissioner would only give further authenticity. This would certainly help
the learned District Munsif to give a fair judgment with respect to the issues
raised in the suit. It is no doubt true the application had been filed at a late
stage. However, the report of the Advocate Commissioner would certainly not
affect the existing evidence already recorded and let in by the parties. The
Advocate Commissioner is only an officer of the Court.
12. In view of these reasons, the order of the learned I Additional
District Munsif Court, Virdhachalam, Cuddalore District is set aside and the
matter is remitted back to the file of the learned I Additional District Munsif
Court, Virdhachalam, Cuddalore District for appointment of an Advocate
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Commissioner to inspect the property along with the Taluk Surveyor and file
necessary report.
13. The Advocate Commissioner should follow the procedures set out
by issuing notice to the parties to the suit and to the learned counsels. The
expenses of the Advocate Commissioner should be borne by the present
Revision Petitioner / Plaintiff and this Court leaves it to the discretion of the
learned I Additional District Munsif Court, Virdhachalam, Cuddalore District
to nominate the Advocate Commissioner and to decide the remuneration.
14.The learned I Additional District Munsif Court, Virdhachalam,
Cuddalore District, may, after taking up the report of the Advocate
Commissioner also grant necessary opportunity to all the parties to file their
objections and if necessary, shall summon the Advocate Commissioner for
examination. However, this would not give any right to either the plaintiff or
the defendants to reopen the existing evidence which had already been
recorded. That evidence still stands and would continue to stand. It cannot be
added. It should be analysed and such analysis should be done keeping in
mind the report of the Advocate Commissioner.
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15. The learned I Additional District Munsif Court, Virdhachalam,
Cuddalore District, should give necessary opportunity to the plaintiff and the
defendants to advance arguments and thereafter deliver judgment. The
directions stated above may be strictly followed by the learned I Additional
District Munsif Court, Virdhachalam, Cuddalore District.
16. With the above observations, the Civil Revision Petition is allowed.
No order as to costs. Consequently, the connected Civil Miscellaneous Petition
is also closed.
03.06.2024
sts
Index : Yes / No
Internet : Yes / No
To:
The I Additional District Munsif Court,
Virdhachalam, Cuddalore District.
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J. NISHA BANU, J.
sts
Order made in
Dated:
03.06.2024
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