Madras High Court
Zareena Mohammed Illyas Arayalpurath vs Sajila.V on 19 October, 2024
C.R.P.No.3827 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.10.2024
CORAM
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.3827 of 2024 &
CMP.No.21003 of 2024
Zareena Mohammed Illyas Arayalpurath : Petitioner
versus
1.Sajila.V
2.Rosna V.P.
3.Kavitha K : Respondents
Prayer: Petition filed under Article 227 of the Constitution of India seeking
to set aside the fair and decretal order dated 16.07.2024 in I.A.No.3 of 2024
in O.S.No.35 of 2023 on the file of the District Munsif, Mahe and allow the
application in I.A.No.3 of 2024 as prayed for.
For Petitioner : Mr.Gopika Nambiar
For Respondents : Mr.Manoj Sreevalsan
ORDER
The civil revision petition arises against the order passed by the
learned District Munsif cum Judicial Magistrate, Mahe in I.A.No.3 of 2024
in O.S.No.35 of 2023.
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2. For the sake of convenience, the parties shall be referred to as per
their ranks in the suit.
3. The civil revision petitioner is the plaintiff. She filed a suit for
permanent injunction restraining the defendants from trespassing into the
suit schedule mentioned property and for mandatory injunction directing the
defendants to demolish the building constructed by them including the
compound wall, which the plaintiff alleges was, put up by encroaching into
her land.
4. The claim of the plaintiff is that she purchased the property in the
year 2016. Subsequently, the defendants 1 and 2 had purchased the adjacent
property in the year 2018. They constructed a building on the northern side
of the property. The plaintiff alleges that the said construction has to be
brought down, since the defendants 1 and 2 had encroached upon her
holdings and had put up the construction.
5. Pending the suit since the plea of encroachment had been raised, an
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application was filed for appointment of an Advocate Commissioner in
I.ANo.2 of 2023. The defendants had no objection to an Advocate
Commissioner being so appointed and the said application stood allowed.
6. The learned Advocate Commissioner visited the suit property on
23.02.2024. He measured the property in the presence of the parties with the
assistance of Sub Inspector of Land Survey, Mahe. He submitted a report on
22.03.2024. The report is also annexed with a location sketch of the
property. The report was filed on 22.03.2024 and on 25.03.2024, the said
application was closed. Therefore, the plaintiff took out a fresh petition in
I.A.No.3 of 2024 to set aside the report of the Advocate Commissioner. This
application was opposed by the defendants.
7. On consideration of the affidavit and the petition, the learned
District Munsif came to a conclusion that there is no necessity to set aside
the report. Hence, this revision.
8. I have heard Ms.Gopika Nambiar for the civil revision petitioner
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and Mr.Manoj Sreevalsan for the respondents.
9. Ms.Gopika Nambiar invites my attention to the plan annexed to her
sale deed in document No.24023 of 2021. She points out that the East-West
extent of her property is 8.9 meters and that of North-South is 3 meters. She
compares this with a location sketch that has been submitted by the advocate
commissioner to point out that the advocate commissioner has divided the
land erroneously into 1.4 and 1.6 with respect to portion marked B and has
shown other 1.6 meters in the portion marked C. She says that this is the
confusion that exists in the plan. Therefore she pleads that the order of the
learned Trial Judge should be revised and the Advocate Commissioner
should be directed to revisit the suit property.
10. Mr. Manoj Sreevalsan points out that the defendants did not have
any objection to the Advocate Commissioner visiting the suit property and
submitting a report, on account of the fact that the construction by the
defendants had been made after they had obtained permission from the
appropriate planning authority. He further argues that prior to granting the
permission, the authorities had inspected the property and were convinced
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that the construction was in accordance with their title. He draws my
attention to the counter affidavit filed by the defendants in I.ANo.3 of 2024
and argues that if the plan, which is relied upon by the plaintiff, is to be
utilized then the purpose of appointing the Advocate Commissioner with a
surveyor itself is rendered otiose. Furthermore, relying upon the location
sketch, Mr. Manoj Sreevalsan submits that the Advocate Commissioner has
clearly demarcated the extent running North-South as 3 meters and it tallies
with the suit schedule mentioned property. She says that the order of the
learned Trial Judge does not require any interference.
11. I have carefully considered the arguments of both sides.
12. The position of law as to how the Trial Court should deal with an
application for appointment of an Advocate Commissioner has been dealt
with by this Court in Vemba Gounder v. Pooncholai Gounder, AIR 1996
Madras 347. The Honorable Mr. Justice S.S.Subramani was pleased to hold
as follows:
30. In this case, admittedly, there is no finding
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whether the report filed by the Commissioner can be
accepted or not, i.e. there is no finding by the Court
below about the satisfactory procedure adopted by the
Commissioner in filing the report and also about the
correctness of the report. So long as there is no finding,
the jurisdiction of the Court in appointing a second
Commissioner as sought for by the petitioner is
doubtful. The dismissal of the application by the Court
below cannot, therefore, be interfered with.
31. The petitioner has filed objections to the
report. According to him, even the suit property is not
identified by the Commissioner and he has simply
copied a survey plan with the help of a surveyor. If that
be so, the petitioner should have taken steps to
examine the Commissioner or let in evidence to satisfy
the Court below that the report is faulty and the same
should be scrapped and the same Commissioner should
be directed to file another report or afresh Commission
should be issued with a direction to locate the property
as sought for in the application. No such attempt was
made by the petitioner. Even though objections were
filed in the year 1994, till the dismissal of the present
application, the petitioner did not take any steps in this
regard. He could have moved the Court below to enter
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a finding regarding the acceptability or otherwise of
the report. I am sure, if such an attempt had been made
by the petitioner, the Court below would have rendered
a finding on the Report already filed by the Advocate-
Commissioner. I have already said that when objection
is raised on a Report, it is the duty of the trial Court to
enter a finding regarding the same before asking the
parties to let in evidence on the merits of the case. For
the purpose of substantiating their Objections to the
Report, probably examination of the Commissioner
alone may not be sufficient. Parties may also have to
be examined. Only after taking such steps and after
arguments, when the Court enters a finding on the
Report already filed, if he is aggrieved by the finding,
the petitioner can insist upon issuing a second
Commission or remit the warrant to the same
Commissioner, for curing the defects made mention of
in the Objections. Merely accusing the trial Court of
not following the procedure is not proper.”
13. A perusal of the aforesaid judgment makes it clear that if a party is
not satisfied with an Advocate Commissioner's report, then he or she should
file an objection to the same. If such objections are filed, the Court should
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adjudicate on the validity of the Advocate Commissioner's report vis-a-vis
the objections that are being filed by any party. Once the Court comes to a
conclusion that the report is unsatisfactory, then it can set aside the report
and Suo Motu appoint a fresh Advocate Commissioner or re-issue the
warrant to the same Commissioner. It is not a dispute neither the plaintiff nor
the defendant have filed objections to the report.
14. Ms.Gopika Nambiar submits that the learned Trial Judge did not
give any opportunity to the plaintiff to file her objections.
15. If that be the situation, this revision can be disposed of with a
direction to the learned District Munsif to reopen I.A.No.2 of 2023 and
receive the objections that the plaintiff might filed within a particular period.
In case, the plaintiff does not file any objection within 15 days from the date
of reopening, then the learned Judge will be entitled to receive the report and
proceed further in the suit. If objections are filed by the plaintiff or the
defendants, the learned Trial Judge will assess the Advocate Commissioner's
report on the basis of the objections so filed and come to a conclusion
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whether the report is satisfactory or not. If she comes to a conclusion that the
report is satisfactory, then she is entitled to receive the said report in
evidence in terms of Order XXVI Rule 10(2) of the Code of Civil Procedure.
For the said purpose, in case the plaintiff wants to examine the Advocate
Commissioner in the box, the Court should permit the parties to conduct the
said exercise. Needless to add that since the procedure laid down by this
Court in Vemba Gounder's case having not been followed, the finding that
has been rendered by the learned Trial Judge in I.A.No.3 of 2024 will not
stand in the way of the learned Trial Judge to consider the objections to be
filed by the plaintiff.
16. With the above directions, this civil revision petition is disposed
of. It is open to the defendant to summon the land surveyor of Mahe, if the
plaintiff seeks for examination of the Advocate Commissioner in terms of
Order XXVI Rule 10 of the Code of Civil Procedure.
19.10.2024
nl
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Index : Yes/No
Speaking Order/Non speaking order
Neutral Citation : Yes/No
To
1.The District Munsif, Mahe
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V.LAKSHMINARAYANAN, J.
nl
19.10.2024
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