Venkatachalam @ Venkittu v. R. Ganesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.12.2016
CORAM
THE HON'BLE MRS.JUSTICE PUSHPA SATHYANARAYANA C.R.P.PD.No.3761 of 2016 and C.M.P.No.19115 of 2016
1. Venkatachalam @ Venkittu
2. Dhayananth .. Petitioners vs R.Ganesan .. Respondent Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and final order dated 17.10.2016 passed by the learned I Additional District Munsif, Salem in I.A.No.1059 of 2016 in O.S.No.238 of 2016.
For Petitioners : Mr.N.Anand Venkatesh For Respondent : Mr.R.Nalliyappan
ORDER
The defendants are the revision petitioners, who have preferred the above revision, challenging the order passed by the Court below in appointing an Advocate Commissioner, in a suit for permanent injunction filed by the respondent/plaintiff.
2. For the sake of convenience, the parties are referred to hereunder according to their litigative status and ranking in the suit.
3. The brief facts of the case is as follows: (i) The respondent/plaintiff has filed IA No.1059 of 2016 in the suit filed by him O.S.No.238 of 2016 for appointment of a Commissioner to measure the suit property with the help of a qualified surveyor, claiming ownership by virtue of a gift deed executed by his father and the revision petitioners/defendants are his neighbours. Dispute is with respect to the pathway on the eastern side. D1 had purchased the property from the plaintiff, who in turn, had sold portion of the property to D2. When the defendants had denied that there is no such pathway, as alleged by the plaintiff and as shown in the plan attached to the plaint, he has filed an application for appointment of a Commissioner to identify the boundaries of the suit property by noting down the physical features and to draw a plan to scale with an aid of a qualified surveyor with reference to the revenue records and documents of the parties and to submit a report and plan.
(ii) The defendants resisted the said application stating that the plaintiff has no lands in survey Nos.48/7 and 48/6. Though originally, status quo order was granted by the court below, subsequently, that was vacated after full enquiry. However, the Court below allowed the application seeking appointment of Advocate Commissioner by holding that ordering the said application would not prejudice the defendants. Hence, the revision.
4. Heard both sides.
5. A perusal of the order passed by the Court below makes it very clear that the plaintiff does not possess any land on the western side of the road. Besides the suit is only for a bare injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property and restraining them from levying and expanding the pathway as indicated in the plaint plan. According to the revision petitioners/defendants, the claim of the respondent/plaintiff of two feet pathway is an imaginary one and he has to establish his possession and the existence of the same only by his documents.
6. A Commissioner cannot be appointed for collecting the evidence or to prove the factum of possession. When the suit itself is for a bare injunction, the factum of possession as on the date of cause of action is the criteria to grant a decree. A Commissioner cannot be subsequently appointed to find out the possession or even gather evidence with respect to the physical features. Especially, the relief sought for by the plaintiff, in the application, to engage a qualified surveyor and draw a plan to scale, in comparison with the revenue records is impermissible. While so, the Court below has allowed the application, which is not permissible in law.
7. The Courts have deprecated the practice of appointing a Commissioner for conducting a roving enquiry to gather evidence. Therefore, the order passed by the learned I Additional District Munsif, Salem in allowing the application filed by the respondent/plaintiff for appointment of an Advocate Commissioner, suffers from material irregularity as the same has been made without application of mind in a mechanical manner.
8. In the result the impugned order dated 17.10.2016 passed by the learned I Additional District Munsif, Salem in I.A.No.1059 of 2016
in O.S.No.238 of 2016 is set aside and the Civil Revision Petition is allowed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. 09.12.2016 vj2 Index: Yes/No Internet: Yes To The I Additional District Munsif, Salem
PUSHPA SATHYANARAYANA,J., vj2 CRP PD.No.3761 of 2016 and C.M.P.No.19115 of 2016 09.12.2016