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Madras High CourtCRP(MD)/2410/2017dismissed

P.Sannasi, v. M.Mohammed Ismail,

2018-01-18Honourable Mrs Justice J. Nisha Banu3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18.01.2018 (Reserved on 18.12.2017) CORAM :

THE HONOURABLE MRS.JUSTICE J.NISHA BANU CRP(PD)(MD)No.2410 of 2017 and CMP(MD)No.11462 of 2017 P.Sannasi ... Petitioner/Petitioner/ 1st Defendant vs.

M.Mohammed Ismail ... Respondent/Respondent/ Plaintiff Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 22.08.2017 made in I.A.No.551 of 2017 in O.S.No.371 of 2012 on the file of the II Additional Subordinate Judge, Tiruchirappalli. For Petitioner : Mr.K.Prabhakar For Respondent : Mr.Veera Kathiravan for M/s.Veera Associates

ORDER

This Civil Revision Petition has been filed against the fair and decreetal order dated 22.08.2017 made in I.A.No.551 of 2017 in O.S.No.371 of 2012 on the file of the II Additional Subordinate Judge, Tiruchirappalli.

2.Learned counsel for the petitioner would submit that the petitioner is the 1st defendant in the suit and the respondent is plaintiff. The suit has been filed for declaration and injunction in respect of the suit property measuring an extent of 2430 sq.ft. The respondent/plaintiff purchased the suit property under a sale deed dated 07.04.1998 and the revision petitioner purchased an extent of 2385 sq.ft even before the respondent had purchased the said property. Hence, identification of the suit property had become necessary and the revision petitioner filed an interlocutory application for appointment of advocate commissioner to inspect the petition mentioned property with the help of qualified surveyor and measure the property to draw a rough plan and file a detailed report. In support of his contention, learned counsel relied on a judgment in Arunachalam and another vs. Rayadurai and others(CRP(PD) No.996 of 2012 dated 25.11.2016).

3.Learned counsel for the respondent would submit that the respondent/plaintiff filed counter in the commissioner application contending that the core issued that has to be decided in the suit is whether the respondent or the petitioner is the owner of the suit property and who has purchased the suit property from the erstwhile owner namely, Veerasamy and that can be decided only by the documentary evidence. Therefore, it was contended that appointment of advocate commissioner is not necessary.

4.Heard the learned counsel for the petitioner as well as the respondent.

5.Perusal of the records shows that the Trial Court has observed that the litigation at hand could be decided only based on the documents and not by identifying the lie of the property and identification of property is in no way going to help in deciding the issue. The crux of the issue is as to who is the title holder of the suit property and the same has to be decided based on the documents placed before the Court and not otherwise. It has been further held that advocate commissioner cannot be appointed to collect evidence and it is for the litigants to establish their cases by filing necessary documents before the Court. Ultimately, the Trial Court has dismissed the commissioner application holding that appointment of commissioner would only be a futile exercise which is not going to aid the Court in adjudicating upon the issue. The Court also held that it is no one's case that the identification of the property is under dispute.

6. Relying on the abovesaid judgment of this Court, though the learned counsel for the petitioner contended that even if no application is made by either of the parties, in the interest of justice and to arrive at a correct decision, the court on its own can appoint a commissioner for local investigation regarding identification, location, measurement of land, this Court is not inclined to subscribe to the said contention as it is a suit for declaration and injunction. In such a situation, it is always open to both parties to produce documentary evidence in order to prove their title over the suit property and the court can very well come to the correct decision based on the documents adduced.

As held by the Trial Court, when it is not the case of either side that identification of property is under dispute, issuance of warrant to the commissioner to inspect the petition mentioned property with the help of qualified surveyor and measure the property to draw a rough plan and file a detailed report, is not at all necessary, more so, in the suit for declaration and injunction as it would amount to pre-determine the issue raised in the suit. Further, as per the settled law, an Advocate Commissioner cannot be appointed in a suit for declaration and injunction in the nature of collecting evidence and the Trial Court has rightly dismissed the application. The judgment relied on by the learned counsel for the petitioner is not applicable to the present case.

Therefore, there is no infirmity in the impugned order warranting interference at the hands of this Court.

Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(C.O) /True Copy/ Sub-Assistant Registrar To The II Additional Subordinate Judge, Tiruchirappalli.

+One cc to Mr.Veera Associates, Advocate, SR.No.42903 +One cc to Mr.K.Prabhakar, Advocate, SR.No.42639 bala RL/4C/3P/SKN/RSK/SAR1/1/2/2018 Order made in CRP(PD)(MD)No.2410 of 2017 18.01.2018