Madras High Court
S.A.Elango Vedantham vs Srinivasa Rao on 30 September, 2024
C.R.P.PD.No.3413 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.09.2024
CORAM:
THE HONOURABLE MRS. JUSTICE R.KALAIMATHI
C.R.P.PD.No.3413 of 2022
and
C.M.P.No.18132 of 2022
1.S.A.Elango Vedantham
2.Vasantha Elango ... Petitioners/Plaintiffs
Vs.
1.Srinivasa Rao
2.Narayanareddy ... Respondents / Defendants
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India against the fair and decretal order passed by the
District Munsif cum Judicial Magistrate No.1, Hosur in I.A.No.1 of 2019 in
I.A.No.300 of 20125 in O.S.No.62 of 2012 dated 22.06.2022 in
dismissing the application filed seeking to re-open the commission
petition and to reissue of the commission warrant to the same advocate
commissioner to revisit and file proper report.
For Petitioners : Ms.A.Abirami
for M/s.V.Srimathi
For Respondents : Mr.M.Venkatesh
1/10
https://www.mhc.tn.gov.in/judis
C.R.P.PD.No.3413 of 2022
ORDER
This Civil Revision Petition has been preferred by the plaintiffs
aggrieved by the orders passed in I.A.No.1 of 2019 in I.A.No.300 of 2012
in O.S.No.62 of 2012 dated 22.06.2022 on the file of the District Munsif
cum Judicial Magistrate No. 1, Hosur.
2. Heard Ms.A.Abirami, learned counsel appearing for the
petitioners and Mr.M.Venkatesh, learned counsel appearing for the
respondents.
3. The revision petitioners/plaintiffs filed a suit in O.S.No.62 of
2012 before the above said Court for the following reliefs:
(i) For declaration of title of the 1st plaintiff to 'A'-schedule property.
(ii) For declaration of title of the 2nd plaintiff to the suit 'B'-schedule
property.
(iii) to grant permanent injunction restraining the defendants 1 and
2 from interfering with the peaceful possession and enjoyment of the
plaintiffs in respect of the suit 'A' and 'B' schedule properties.
The description of property details found in the plaint are extracted
hereunder:
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DESCRIPTION OF PROPERTY
In Krishnagiri District, Hosur Taluk, Eluvappalli Village S.No.2/2,
dry, extent 2.21 acres land assessment Rs.3.03.
'A' Schedule
In this AN EXTENT OF 1.11 ACRE, assessment Rs.1.52
East : S.No.2/3A
West : S.No.1-Poramboke Land
North : Jeemangalam Village limit.
South : 2nd Plaintiff's land (item No.2)
'B' Schedule
AN EXTENT OF 1.10 ACRE, assessment Rs.1.51
East : S.No.2/3B
West : S.No.1-Poramboke Land
North : 1st Plaintiff's land (item No.1)
South : Cart Track(S.F.No.27)
4. While so, the revision petitioners/plaintiffs moved an application
under Order 26 Rule 9 of CPC in I.A.No.300 of 2012 for appointment of
Advocate Commissioner to visit the suit property, to locate the suit
property and to note down the physical features, the encroachment
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portion and to submit his report with a plan drawn to scale.
5. The same was ordered by the trial Court by appointing
Advocate Commissioner to visit and locate the suit property, to note
down the physical features by measuring the petition mentioned
properties with the help of qualified Surveyor with necessary revenue
records. Due compliance to the order of the trial Court, the Advocate
Commissioner filed his report dated 20.11.2017 with a rough plan.
6. The petitioners herein have also filed their objections dated
21.03.2018. Thereafter, an application in I.A.No.1 of 2019 was filed
seeking to reopen the Commission petition and to reissue Commissioner
Warrant to the same Advocate for revisit and to file proper report.
7. For which, the respondents stoutly raised their objections by
filing counter by stating that at the time of inspection, the Advocate
Commissioner measured the suit land with the help of qualified Surveyor
and located the encroached portion and in Survey No.2/3A belongs to
the 1st defendant by virtue of registered sale deed Doc.No.13055 of
2008. The encroached portion has been marked as BHG in the plan and
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prayed to dismiss the petition.
8. The trial Court dismissed the petition stating that in a suit for
declaration and permanent injunction, it is the duty of the plaintiffs to
establish their case through document and oral evidences and the
petitioners cannot be allowed to collect evidence through reissue of
Commissioner Warrant in order to establish their case or for developing
their case.
9. As mentioned supra, suit has been filed for declaration of title
and for permanent injunction not to interfere with the peaceful
possession and enjoyment of the properties.
10. Ms.A.Abirami, learned counsel appearing for the revision
petitioners would contend that as pointed out by the Advocate
Commissioner in his report that he is not in a position to collect the plan
from the revenue officials and that may be ordered to be filed by re-issue
the warrant to the same Advocate Commissioner. In order to buttress her
arguments, the following judgment was referred to:
Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar
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Sangam, represented by its President Palanivel reported in 1998 LW
112, wherein, the object of local investigation under Order 26 Rule 9 of
CPC has been discussed by this Court. The relevant portion of the said
order is culled out and mentioned hereunder:
''5.The object of local investigation under O.26,
R9 of the Code cannot be belittled. Its object is to
collect evidence at the instance of the party who
relies on the same and which evidence cannot be
taken in court but could be taken only from its
peculiar nature, on the spot. This evidence will
elucidate a point which may otherwise be left in
doubt or ambiguity on record. The Commissioner, in
effect, is a projection of the court, appointed for a
particular purpose. In this regard, the implication of
O.26, R.10 cannot be lost sight of when it says that
the report of the Commissioner and the evidence
taken by him shall be evidence in the suit and shall
form part of the record. We are not very much
concerned with the (sic) probative value of the report
of the Commissioner.''
11. Mr.M.Venkatesh, appearing for the respondents would reply
that when the suit is filed for the relief of declaration of title and for
possession, upon application of the plaintiffs under Order 26 Rule 9
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CPC, the Advocate Commissioner was appointed and he has executed
his warrant and only in order to protract the proceedings, this petition is
filed.
12. In general, in a suit for declaration of title and for permanent
injunction, not to disturb the peaceful possession and enjoyment of the
suit property, the burden lies on the plaintiffs to prove their case.
However, depending upon the issue involved in a suit, the plaintiffs may
resort to file an application under Order 26 Rule 9 CPC.
13. On a careful perusal of the report of the Advocate
Commissioner, he has stated that despite several reminders, he is not in
a position to collect the plan and upon the direction of the trial Court, he
filed his report along with rough plan.
14. Suit is filed in the year 2012. I.A.No.300 of 2012 was filed in
2012 and the same was ordered in the year 2013. The warrant was
issued on 29.04.2013 to the Advocate Commissioner and report was
filed only on 20.11.2017. The purpose behind the appointment of
Advocate Commissioner is that the evidence available to appoint
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Advocate Commissioner would enable the Court to properly and
correctly understand and assess the evidence on record in order to
arrive at a proper conclusion.
15. In this case, the Advocate Commissioner was appointed and
he has filed his report along with the plan and he has specifically stated
in his report that he was not able to collect the plan from the revenue
officials. Re-issue of the Commissioner warrant would arise only if re-
course is taken under Order 26 Rule 10 of CPC. In this case,
considering the issue involved in the matter, the plaintiffs are at liberty to
examine the revenue officials.
16. Based on the aforestated discussions and submissions, I do
not find any valid reason to interfere with the orders passed by the
learned trial Judge.
17. In the result, this Civil Revision Petition stands dismissed. As
the suit is of the year 2012, the learned trial Judge is directed to
complete the trial and dispose of the suit preferably within a period of
eight (8) months from the date of receipt of a copy of this order. There is
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no order as to costs. Consequently, connected civil miscellaneous
petition is closed.
30.09.2024
Index : Yes / No
Neutral Citation Case : Yes / No
Speaking Order / Non-Speaking Order
ssn
To
The District Munsif cum Judicial Magistrate No.1,
Hosur.
https://www.mhc.tn.gov.in/judis
R.KALAIMATHI, J.,
ssn
and
30.09.2024
https://www.mhc.tn.gov.in/judis
