(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the Order and Decretal Order in I.A. No.1471 of 2012 in O.S. No.121 of 2012 dated 4.7.2013, on the file of the Principal District Munsif Court at Poonamallee.)
1. The Plaintiff in O.S. No.121 of 2012 is the Revision Petitioner before this Court. Challenging the Order passed by the learned Principal District Munsif, Poonamallee in I.A. No.1471 of 2012 in O.S. No.121 of 2012, rejecting the request made by the Petitioner for appointing an Advocate Commissioner and directing him to inspect the Suit property, measure the same, note down the physical features, with the help of respective Taluk Surveyors and submit his Report along with Rough Sketch in the said O.S. No.121 of 2012.
2. The case of the Plaintiff is that she has purchased the Suit schedule of property situated at Thundalam Village, comprised in S. No.64 of 1, Ambattur Taluk, Thiruvallur District, measuring to an extent of 1062 sq. ft. from (1) K. Ramu, (2) K. Babu, and (3) K. Shanmugam, who are residing at No.50, Perumal Koil street, Numbal, Chennai-77, have executed a General Power of Attorney in favour of K.Venkatesan S/o Late. Kathirvelu, residing at No.9, Kannabiran Cross Street, Numbal, Chennai-77, registered as Document No.795 of 2004, Book No.4, on the file of SRO-Kundrathur, dated 15.4.2004. Originally, there was a small hut in the Suit schedule of property prior to purchase and at the time of purchase, there was no hut available, after purchasing the said property, the Plaintiff has put up a small hut in the Suit schedule of property.
3. The Plaintiff has come forward by saying that after purchasing the Suit schedule of property, she is in continuous possession and enjoyment of the property without any let or hindrance. The Plaintiff further states that her vendors father Late Kathirvelu had obtained the property by way of hereditary. The Plaintiff s vendors father died on 21.1.1995 and leaving behind his Wife (1) Mrs. K. Sarkunam, (2) K. Venkatesan, (3) K. Ramu, (4) K. Babu, and (5) K. Shanmugam, are the only legal heirs of the Late. Kathirvelu. Except Mrs. K. Sarkunam Wife of deceased Kathhirvelu, all the sons have executed the General Power of Attorney in favour of the said K.Venkatesan i.e., one of the Legal Heirs of Late. Kathirvelu. Pursuant to the above General Power of Attorney, the Power holder namely K. Venkatesan has executed the Sale Deed in favour of the Plaintiff on 8.1.2007, which was registered as Document No.129 of 2007, on the file of No.1-Joint Sub-Registrar, Saidapet, Chennai South.
4. The Plaintiff also further stated that despite the sale of the property by the vendors of the Plaintiff, the Defendant by namely Anandhi Sankara Narayanan W/o Sankara Narayanan alleged that she is the owner of the Suit schedule of property and trying to
encroach the same due to raise in prices of the land in and around started demanding more money from the Plaintiff and when the Plaintiff refused to heed to the unreasonable demand of the Defendant, she started to give various troubles to the Plaintiff and also started to disturb her possession.
5. But on 26.3.2012, a threat was made from the Respondent about the disturbing of the possession of the Plaintiff. The Plaintiff was given a Complaint to the local Police Station namely Inspector of Police, Maduravoyal Police Station and also to the other higher Authorities. When her vendors, who have sold the Suit property in favour of her and as per the said transaction, which had evidenced in the document and to show that they were already handed over the possession of the property in favour of the Plaintiff. The B Memo Notice, Chitta Adangal, Pasali and House Tax stand in the name of the Plaintiff s vendor of the Suit property and after purchasing the Suit property, the Plaintiff had changed in her name including E.B., etc. in respect of Suit schedule of property.
6. In fact, the adjacent owner of the Suit property one by namely Mr. G. Gowri Shankar had applied for Planning Permit from Madras Metropolitan Development Authority and the same was granted in his favour on 20.12.1988 and as per the Planning Permission, the said Mr. G. Gowri Shankar has put up a constructions and complete the same within the stipulated time but he failed to do so. Therefore, the Planning Permission was granted to the Layout/Sub-Division of land/building construction/ change in use of land/building according to the authorized copy of the Plan attached hereto, subject to the condition overleaf. The permit expires on 19.12.1991 since the building construction work should be completed as per Plan before the expiry date. If it is not possible to complete the construction, request for renewing the Planning Permission should be submitted to Madras Metropolitan Development Authority before the expiry date.
7. The area earmarked for Public purpose I to X Plots (viz., Post and Telegraph Office, Police Station, etc.) remain reserved for a specific period of one year from the date of approval to enable the Government Departments concerned to negotiate with the owner and acquire the reserved land if required for them after the said period of one year, and if none of the agencies purchase the reserved land full/part, the layout owner/developer is free to dispose off the site reserved for public purpose to anybody for residential use only. The said Mr. G. Gowri Shankar, not followed the above said Rule and sold the property to the Defendant on 7.9.1989 within 6 months from the date of Approval Lr. No.D2 (L)/2040/87, dated 20.12.1988. Hence, the Defendant is the adjacent owner of the Suit property i.e. in S. Nos.70/1, 70/2, 70/3 and 66, Plot No.I, vide layout approval No.PPD/LO 202/1988 of an extent of about 3106 sq.ft. and purchased on 7.9.1989, registered as Document No.3142/1989, SRO, Saidapet in the Registration District of Madras-South, in Thundalam Village and trying to encroach the same with the help of unruling elements. The claim of the Defendant is on the ground that the Suit property had purchased by way of an alleged sale deed is nothing but an attempt to grab money from the Plaintiff. The Planning permission clearly shows that 75x35 = 2,625 sq. ft., whereas the Defendant document says 75 x 41 = 3106 sq.ft.
8. The Plaintiff also states that the Defendant had never in possession of the said property after the sale effected in favour of the Plaintiff and even in the Complaint lodged before the Inspector of Police, Maduravoyal Police Station. Originally, the property was belongs to Late. Kathirvelu by virtue of ancestral property, was in continuous possession and enjoyment of the said Late Kathirvelu, though the said property is an Ancestral property of the said person, and the Defendant is no way connected with the Suit property. The Defendant has no manner of right, title or claim in respect of the Suit property. Therefore, she approached the learned Principal District Munsif Court, Poonamallee and filed the above Suit in O.S. No.121 of 2012 for Permanent Injunction restraining the Defendants, their men, agents, servants or any one of them claiming under them or acting on their behalf from in any way interfering with the Plaintiff s peaceful possession and enjoyment of the property.
9. On receipt of the Summon, the Defendant entered appearance through her Advocate and filed her Written Statement.
10. The case of the Defendant is that she purchased Plot No.I, in Maruthi Nagar, comprised in Survey No.66 in Thundalam Village, previously Saidapet Taluk, Chengalpat District presently Ambattur Taluk, Thiruvallur District and the land to an extent of 3106 sq.ft. by means of Sale Deed dated 7.9.1989 from Mr. G. Gowri Shankar, registered as Document No.3142 of 1989. She also purchased Plot No.II in Maruthi Nagar, comprised in Survey No.66 in Thundalam Village, previously Saidapet Taluk, Chengalpat District present Ambattur Taluk, Thiruvallur District and land to an extent of 2721 sq. ft. by means of Sale Deed dated 7.9.1989 from Mr. G. Gowri Shankar, registered as Document No.3143 of 1989 and from then on the Defendant is in possession and enjoyment of the property as absolute owner without any disturbance. The Defendant states that the boundaries for Plot No.I, land to an extent of 3106 sq.ft. are North by: 30 Feet Road, South by: land in Survey No.67, East by: Plot No.II (Roman Letter Two) and West by: Existing Panchayat Road and having a linear measurement of East to West on the Northern side 41 feet and Southern side 41 feet and North to South on the Eastern side 76 feet 6 inches and Western side 75 feet.
11. The Defendant come forward by saying that the Plaintiff was filed the frivolous Suit against the Defendant and the Plaintiff has also filed I.A. for Interim Injunction against the Defendant. The Plaintiff has stated in Paragraph No.3 of the Plaint that the Plaintiff was purchased the land to an extent of 1062 sq.ft. in Survey No.64/1, Thundalam Village, Ambattur Taluk, Thiruvallur District, through the Sale Deed dated 15.4.2004, registered as Document No.795 of 2004. The Defendant also states that the Defendant property is comprised in Survey No.66 and the Plaintiff s property is comprised in Survey No.64/1. This itself shows that the Defendant property is comprised in different Survey Number and the Plaintiff s property is comprised in different survey number and there is no question of the Defendant disturbing or interfering the peaceful possession and enjoyment of the Plaintiff s property and also stated that there is no question of the Defendant to encroach the Suit property. Therefore, she denied all the allegations and sought for dismissal of the Suit.
12. While pendency of the above Suit, the Petitioner/Plaintiff was filed I.A. No.1471 of 2012 for appointment of an Advocate Commissioner. The Petitioner/Plaintiff stated in her Affidavit that she is in continuous possession and enjoyment of the Suit property as per the Sale Deed purchased from the vendor. In the Affidavit, the Petitioner/Plaintiff stated that the Plaint Document No.I filed by her that is the B Memo Notice, which clearly states that Survey No.64 is Pattai. The Respondent states that in the boundary of the Suit property of the Respondent is west by: it is stated in the Respondent Sale Deed existing Panchayat Road. The Suit property comes under Numbal, Thundalam and Iyyappan Thangal Village. But the Suit property is not comes under the category of Pattai . Therefore, if it is surveyed by the Advocate Commissioner with the help of concerned Taluk Surveyor, the exact Village Panchayat road to be find out. The Plaintiff also states that she has already paid a sum of 80 on 9.4.2012 for measurement of Suit property by Taluk Surveyor. Unless and until the Suit property was measured by the Advocate Commissioner with the help of Taluk Surveyor, the boundaries of the Suit property and the adjacent property of the
Respondent to be find out by them. Hence, she sought for appointment of an Advocate Commissioner with the help of respective Taluk Surveyors to inspect the Suit property and file a Final Report with Rough Sketch. Hence, the Petition filed under Order 26, Rule 9.
13. On receipt of the notice in the above case, the Respondent filed her Counter before the said Court.
14. The case of the Respondent is that the Plaintiff has alleged that B Memo was given to her vendor. Hence, the Suit property must be a Poromboke land and the Plaintiff cannot purchase Poromboke land by registered Sale Deed. Therefore, the Document dated 15.4.2004 cannot create any title in favour of the Plaintiff or her vendors.
15. The Respondent further states that the Plaintiff admitted that at the time of purchasing, there was no hut in the property and after purchased, she has put up a hut and the Petitioner has not put up any hut. The Petitioner has created a Sale Deed in respect of a Poromboke land and now trying to encroach Poromboke land or trying to lay claim upon the Patta road.
16. The Respondent/Defendant also states that from the date of purchase the property, the Petitioner is possession and enjoyment of the Suit property without any let or hindrance is false and the same is specifically denied. Even according to B Memo, the said property is a Battai, the Respondent s property is bounded on the West and North by road. The allegations made out by the Plaintiff is that the boundaries of the Suit property and adjacent property of the Respondent is to be find by the Advocate Commissioner and hence, the Petitioner/Plaintiff wants to identify the Suit property. Since the Suit property itself is a Poramboke land and the Advocate Commissioner cannot find a property in a Poromboke land.
17. The Respondent also states that after the institution of the said Suit, the Respondent/Defendant demolished the compound wall with the help of the Police is false. On the other hand, the Petitioner/Plaintiff is trying to encroach upon the Patta land belonging to the Respondent/Defendant. The Respondent/Defendant also states that the boundaries of the Suit property and adjacent property cannot be easily identified without the help of surveyors. That being the case the Petitioner cannot seek Advocate Commissioner to identify the property. Therefore, the Respondent/ Defendant denies all other allegations in the Affidavit which are inconsistent with the facts and prays for dismissal of the Petition in I.A. No.1471 of 2012 since the Petition itself is not maintainable.
18. Considering both side cases, the learned Principal District Munsif Court, Poonamallee was pleased to dismiss the Application on 4.7.2013 on the ground that as per the allegations made out by the Defendant in the Written Statement that the B Memo is a relevant to Pattai Pormboke land. Therefore, to identify the Suit land and other land situated around the Suit property, which was totally denied by the Respondent/Defendant that as per the allegations made out by the Petitioner/Plaintiff herself, the Suit property is a Poramboke land and hence, the Advocate Commissioner cannot measure the Poramboke land. The learned Judge also states that the bare Injunction Suit, no Advocate Commissioner be appointed for measuring of the property since the measurement and Report any file cannot help the Court in any way and the Petitioner/Plaintiff herself to prove her case that whether she is in absolute possession and enjoyment of the Suit property or not. Challenging the said Order made in I.A. No.1471 of 2012 in O.S. No.121 of 2012 dated 4.7.2013, the present Civil Revision Petition has been filed.
19. Heard M/s. V. Srimathi, lerned Counsel appearing for the Petitioner and Mr. R. Bharath Kumar, learned Counsel appearing for the Respondent.
20. Admittedly, the Suit was filed for bare Injunction and the case of the Petitioner/Plaintiff is that the Respondent/Defendant stated that as per her Sale Deed in the boundaries of the Suit property of the Respondent is west by existing Panchayat Road. The Suit property comes under Numbal, Thundalam and Iyyappan Thangal Village. But the Suit property is not comes under the category of Pattai . Therefore, the Petitioner/Plaintiff wants to survey or measure the said property through the Advocate Commissioner to the help of concerned Taluk Surveyors and it will be helpful for the exact Villge Panchayat road to be find out.
21. On the other hand, the Respondent/Defendant states that in a bare Injunction, the Petitioner/Plaintiff cannot sought for the relief of appointment of Advocate Commissioner as per Order 26, Rule 9 of C.P.C. No doubt there can be no appointment of Commissioner for collecting evidence and measuring materials. However, the Court below cannot look into the Petition filed under Order 26, Rule 9 of C.P.C. that the object of Advocate Commissioner Appointment under Order 26, Rule 9 of CPC, not to collect the evidence, which has to be done only by the Court for elicit the matter, which are local in created which can be done by the local investigation for this Petition. If the Advocate Commissioner is appointed there is absolute no prejudice would be caused to the Respondent/Defendant, if such appointment of Advocate commissioner is ordered. This was not consider properly and in my view that the request of local investigation is proper and the lower Court is error in decline of the same.
22. This Court and the Hon ble Apex Court in various cases clearly held that the Advocate Commissioner can be appointed in a Suit for bare Injunction, which was held in reported case in Saraswathy and another v. Viswanathan, 2002 (2) CTC 199 (C.R.P. No.2352 of 2001 dated 13.3.2002), this Court passed an Order stating that an Advocate Commissioner can be appointed in a bare Injunction and in the said case, the learned Judge of this Court has consider various cases and passed the Order in the above case particularly the learned Judge passed a similar Order passed by this Court in a case in Pillaiyar v. Ganesan and another, 2000 (1) CTC 279: 1999 MLJ (Supp.)?
In Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam, 1985 (1) MLJ 380: AIR 1986 Mad. 33, the appointment of an Advocate Commissioner was sought for by the Defendant in a Suit for Injunction to restrain him from digging foundation in the Plaintiff s land. The Defendant contended that the land belonged to him. The Court refused to issue Commission. But, the learned Judge of this Court interfered with in Revision and granted the prayer on the following reasons:
A controversy, as we would see from the pleadings, has arisen as to whether the constructions put up by the Third Defendant are within his land or whether they have encroached into the lands of the Plaintiff. A local investigation is the best way to find out the position and the party, viz., the third Defendant coveting the evidence to place before the Court through local investigation by the Commissioner cannot be shut out of their right.
23. In the case in Saraswathy and another v. Viswanathan, 2002 (2) CTC 199 (C.R.P. No.2352 of 2001 dated 13.3.2002), the learned Judge passed the following Order is as follows:
13. In Appu v. A. Fatima Zohra and another 1983 (96) LW 369: 1982 TLNJ 482, it has been held by this Court that, there may be very many circumstances in which only a Commissioner inspecting the property promptly and recording timely assessment of what obtains relating to the building, could alone assist Courts to decide correctly. If such prompt actions are not taken, it may destroy the valuable right of the parties. It may so happen, when a Landlord highhandedly starts pulling down a portion of the main building, the tenant would be greatly interested in securing a Commissioner appointed forthwith. If the right of the tenant to have access to staircase is constructed, he is most interested in seeking appointment of the Commissioner and secure immediate relief for restoring amenities, which is assured to him under the Act.
14. As already pointed out, absolutely no prejudice would be caused by the appointment of an Advocate Commissioner for the purpose of inspecting the property and submitting his report on the physical features, measurements, etc. Though the Commissioner cannot decide the dispute, his Inspection and Report would help the Court in deciding the dispute. The two decisions relied on by the lower Court do not apply to the facts of the present case.
24. In another case in B. Athilakshmi and another v. Sri Prasanna Vinayagar Temple, Pallavayal Road, Agaram, Jawahar Nagar, Chennai-82 and another, 2008 (6) CTC 287, this Court has passed the following Order:
16. On a careful consideration of respective contentions, this Court opines for properly and correctly appreciating and assess the matter in issue in the Suit, the appointment of Commissioner made by the Court in I.A. No.1277 of 2008 is a correct one and therefore, the appointment of Advocate Commissioner Thiru. S. Krishnamoorthy to identify, inspect and note down the physical features of the Suit property with the help of Taluk Surveyor is a necessary and essential one and therefore, this Court is not interfering with the discretion exercised by the Trial Court in appointing the Advocate Commissioner in I.A. No.1277 of 2008 and therefore, the Civil Revision Petition fails and the same is hereby dismissed.
25. The Hon ble Apex Court in Haryana Waqf Board v. Shanti Sarup and others, it is clearly made that when the appointment of Advocate Commissioner was rejected by the Punjab and Haryana High Court and the Hon ble Supreme Court states that the High Court view of the nature of the cases and in the facts of the present case whether the appointment of a Local Commissioner for demarcation of the Suit land is admissible or not?. The Hon ble Supreme Court states that the Punjab and Haryana High Court ought to have considered this aspect of the matter and then to decide the Second Appeal on merits. Therefore, the Hon ble Supreme Court remanded back the matter to the Punjab and Haryana High Court to consider the matter of Appointment of Advocate Commissioner and thereafter to decide the Second Appeal.
26. In one another case rendered by the Hon ble Andhra Pradesh High Court in his case K. Dayanand and another v. P. Sampath Kumar, it is held as follows:
18. In the Judgment cited by the Respondent, in J. Satyasri Rambabu v. A. Anasuya and anr. (5 supra), this Court at Paragraph No.6 held as under:
It is no doubt true that the Courts are normally reluctant to appoint a Commissioner for noting physical features of the Suit Schedule property, particularly in a Suit for Injunction since the same would amount to collecting evidence in favour of one of the parties.
However, there is absolutely no reason to hold that it is a hard and fact rule. Having regard to facts and circumstances of the case and particularly whenever the Court prima facie finds that there is an attempt on the part of one of the parties to alter the physical features of the Suit property and it is necessary to take note of the same, it is always open to the Court to appoint a Commissioner for inspection of such property. It is relevant to note that Order 39, Rule 7 of the Code of Civil Procedure empowers the Court to make an Order for Detention, preservation or inspection of any property, which is the subject matter of the Suit, if the Court feels that such action is necessary or expedient for the purpose of obtaining full information or evidence. In the light of the above said provision, I am unable to agree with the contention of the learned Counsel for the Petitioner that the Court below has committed an error in appointing an Advocate Commissioner. As already noted above the specific plea of the Plaintiffs is that in spite of the Order of Temporary injunction the Defendant has been taking steps to alter the nature of the Suit Schedule land. In the circumstances, the Court below having considered the entire material on record has rightly appointed an Advocate Commissioner. The said Order cannot be said to be vitiate on account of any patent error of fact or law and therefore, does not warrant interference in exercise of Supervisory jurisdiction under Article 227 of the Constitution of India.
19. In Shaik Zareena Kasam v. Patan Sadab Khan and ors. (6 supra), this Court at Paragraph No.10 held as under:
Whenever there is a dispute regarding boundaries or physical features of the property or any allegation of encroachment as narrated by one party and disputed by another party, the facts have to be physically verified, because, the recitals of the documents may not reveal the true facts and measuring of land on the spot by a Surveyor may become necessary. It is always better if the parties are allowed to adduce evidence at the stage of trial for better appreciation of the facts which will help the Court in effectively deciding the main dispute between the parties. If there is some delay in filing the Application to appoint an Advocate Commissioner and if there are some laches on the part of one party, the Court may impose reasonable costs, but it is not desirable to dismiss an application on the ground of mere delay in filing it. In the light of the above referred decisions, I am of the view that the impugned Order does not sustain in the eyes of law.
27. In the said Judgment, the learned Judge of High Court, Andhra Pradesh clearly states that when there is a dispute or issue with regard to identify of a property in a litigation it is necessary to appoint a Commissioner for localizing the property which may be even by taking necessary assistance from a qualified Surveyor which will not amount to collecting evidence which is prohibited. The provision of Order 26, Rule 9 of C.P.C. contemplates Commissions to make local investigations in any Suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. But, provided that, where the State Government has made Rules as to the persons to whom such Commission shall be issued, the Court shall be bound by such Rules. The issue of the above provision appointment of a Commissioner to visit the Suit property and also demarcate the property or properties taking assistance from a qualified Surveyor and also note the physical features of the property in question is qualified.
28. Therefore, as per the Judgment referred by the various Courts, I am of the consider view that absolutely there was no prejudice would be caused to the Respondent/Defendant by appointing an Advocate Commissioner for the purpose of inspecting the property and submit his Report on physical features, measurements, etc. In fact, though the Commissioner cannot decide the dispute, his Inspection and Report would helpful the Court in deciding the dispute. Hence, a local investigation is the best way to find out the position and the party, and coveting the evidence to place before the Court through local investigation by the Commissioner cannot be shut out of their right. Therefore, the appointment of Advocate Commissioner is maintainable in this case, even in the Suit filed by the Petitioner/Plaintiff for Permanent Injunction and accordingly there is necessity for the interference by this Court and accordingly, I am inclined to set aside the Order passed by the learned Principal District Munsif Court, Poonamallee, in I.A. No.1471 of 2012 in O.S. No.121 of 2012, dated 4.7.2013 and a direction is issued to the Trial Court for appointing an Advocate Commissioner.
29. In the above circumstances, I am inclined to pass the following Orders:
(a) This Civil Revision Petition is allowed by setting aside the Order passed in I.A. No.1471 of 2012 in O.S. No.121 of 2012, dated 4.7.2013 by the learned Principal District Munsif Court, Poonamallee.
(b) The Lower Court, namely, Principal District Munsif, Poonamallee is hereby directed to appoint an Advocate Commissioner and direct him to inspect the Suit property, measure the same, note down the physical features, with the help of respective Taluk Surveyors and submit his Final Report along with Rough Sketch, within a period of one month from the date of receipt of a copy of this Order.
(c) It is further directed the Trial Court to pass an Order based upon the Inspection Report given by the Advocate Commissioner, the Suit is to be disposed of on day to day basis within a period of three months thereafter.
30. Accordingly, the Civil Revision Petition is allowed with the above directions. No costs. Consequently, connected Miscellaneous Petition is closed.