The High Court dismissed a Civil Revision Petition challenging the dismissal of an application for appointment of an Advocate Commissioner. The Court held that a plaintiff seeking an injunction must prove possession through evidence and cannot use a Commissioner to collect material evidence regarding possession or boundaries.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:07.07.2014
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA
CRP (PD) No.447 of 2014 and M.P.No.1 of 2014
Radhammal
.. Petitioner
Vs.
.. Respondents
Prayer : Revision Petition is filed under Article 227 of the Constitution of India, praying to set aside the order, dated 05.12.2013 passed in I.A.No.13920 of 2013 in O.S.No.8539 of 2008 by the XVII Assistant Judge, City Civil Court, Chennai.
For Petitioner : Mr.G.Thiyagarajan For Respondents : Mr.P.Sreenivasulu
ORDER
The revision petitioner herein has come forward with this Civil Revision Petition challenging the impugned order, dated 05.12.2013 passed in I.A.No.13920 of 2013 in O.S.No.8539 of 2008 by the XVII Assistant Judge, City Civil Court, Chennai.
that the revision petitioner as plaintiff filed a suit for bare injunction. He further
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submitted that the property was gifted during the British period and the plaintiff/revision petitioner herein is in possession and enjoyment of the property and her predecessors had sold 6 cents to one Jamshath Ansari, who in turn sold the same to Ahamed Hussain, from whom, the defendants purchased the property in the year 2006 and since the defendants attempted to interfere with her possession, she was forced to file the suit. He further submitted that during the trial, the plaintiff/revision petitioner herein filed an application in I.A.No.13920 of 2013 in O.S.No.8539 of 2008 for appointment of an advocate Commissioner to inspect and note down the physical features of the suit property, which was dismissed by the trial Court. He further submitted that Ahamed Hussain sold 7 ½ cents to the defendants, whereas, Ahamed Hussain purchased only 6 cents. Hence, the defendants are not entitled to claim title in the property where the vendor has no title in the property. But, the said factum has not been considered by the trial Court. Hence, he prayed for setting aside the order passed by the trial Court.
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petitioner herein is not in possession of the property. He further submitted that during the cross examination, the plaintiff herself admitted that she is not in possession of the property, where the defendants put up a building and they are running a Medical shop, hence, the plaintiff/revision petitioner herein is not entitled to the property. But, now, she wants to collect evidence, she filed the application for appointment of an Advocate Commissioner. Therefore, the trial Court has considered all the aspects and correctly dismissed the application. To
substantiate his argument, he relied upon the following decisions
(i) 2006 (2) LW 159 (Chandrasekaran & 6 others vs. V.Doss Naidu)
(ii) 2006 (4) LW 970 (R.Sankarappan vs. R.Jayachandran) (iii) 2006 (4) LW 516 (Chinnathambi & 2 others vs. Anjalai)
(iv) 2008 (5) CTC 181 (Meenakshi vs. Vennila and another)
(v) 2014 (2) CTC 68 (Thangaraj vs. Pappathi)
and prayed for setting aside the decisions.
(i) granting permanent injunction restraining the defendant or his men, or his agents, successor in interest or any other person claiming through him from interfering with the
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peaceful possession and enjoyment of the plaintiff over the suit property morefully described in the schedule hereunder except under due process of law
(ii) to direct the defendant to pay the cost of suit.
The Description of the property is extracted hereunder:
Schedule of property
All the piece and parcel of the vacant land situated at Door No.9, Vaigai Street, Rajaji Nagar, Villivakkam, Chennai – 600 049, within the limit of Konnur Village, Sub-Registration District, Chennai, in R.S.No.155, T.S.No.47, bounded as
North by : Asim Bhai House,
South by : Vaigai Street,
East by : Royal Apartment
West by : Redhills Road (North)
application for appointment of an Advocate Commissioner was filed. Hence, it is appropriate to incorporate the prayer sought for in the application and the same is extracted hereunder:
"(a) to inspect and note down the physical
features of suit property,
(b) to measure the suit property for extent and
(c) to note down the boundaries of the suit property
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(d) to find out the extent of encroachment from the parent document of Deceased Mr.Palayam.”
the decisions relied upon by the learned counsel appearing for the respondent.
“18. Advocate Commissioner could be appointed only when the Court is satisfied that on the materials available on record, the party is not able to produce the desired evidence, the Court may assist the party to appoint the Advocate Commissioner to obtain the evidence. If really, the defendants are in possession of the Suit Property, the possession could be proved by producing House Tax Receipts, Adangal and such other desired oral evidence. When the concurrent findings in the earlier litigation in O.S.No.6 of 1972 and A.S.No.164 of 1977 are against the Defendants, it would not be appropriate to appoint the Advocate Commissioner to note down the existence of the house tress, so as to bring out the possession of the Defendants. In the facts and circumstances of the case, particularly in the light of the earlier Judgment in O.S.No.6 of 1972 and A.S.No.164 of 1977, there cannot be mechanical and indiscriminate appointment of Advocate Commissioner. The contention that the Defendants would pay the remuneration and
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that the Plaintiff may not be prejudiced by Appointment of Advocate Commissioner has no force.
19. Apart from seeking Appointment of Advocate Commissioner to note down the physical features of the Suit Property in S.No.8/2, Application has been filed to note down the physical features of the adjacent property of the Defendants property on the Northern Side in S.No.8/1 also. Strong objection has been raised by the Respondent/Plaintiff on the Appointment of Advocate Commissioner to note down the physical features of the adjacent property of the Defendants. Learned counsel for the Revision Petitioners/Defendants has submitted that the Commissioner may be appointed to make local inspection (for the purpose of elucidating the matter in dispute) and contended that when the contention of the Defendants is that they are in possession of the Northern Side of the Suit property along with their property on the Northern Side in S.No.8/1, that aspect is to be elucidated by Appointment of Advocate Commissioner and the Lower Court erred in declining to appoint the Commissioner. This contention of the learned counsel for the Revision Petitioners does not merit acceptance. Possession of the defendants in S.No.8/1 is a matter of evidence. Power is conferred on the court to appoint Commissioner to make local inspection not to collect evidence; but only to obtain evidence, which is a peculiar nature which could be obtained only on spot inspection. Possession of the Defendants in S.No.8/1 could be well proved by adducing appropriate evidence. In that view of the matter also, the order of the Lower Court declining to appoint Advocate Commissioner is to be confirmed.”
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(R.Sankarappan vs. R.Jayachandran) , it was held that the plaintiff has proved his possession and he has not sought for appointment of an Advocate Commissioner to collect evidence.
(Chinnathambi and two others Vs. Anjalai) , it was held as follows:
“It is a well accepted principle of law that an Advocate Commissioner should not be appointed to find out the possession of the property, which has to be adjudicated only by oral and documentary evidence. Under such circumstances, the order of the Lower Court suffers from material irregularity and it is not in accordance with the principles laid down in the above decisions.”
(Meenakshi vs. Vennila and another) , in para-4, it was held as follows:
“4. The learned counsel appearing for the petitioner in support of his contention for the appointment of Commissioner relies on the decision reported in Bali Ram v. Mela Ram and another, AIR 2003 H.P.87 wherein, it is inter alia observed that “To issue a Commission under Order 26, Rule 9 of the Court, it is not necessary that either or both the parties must apply for issue of commission, the Court can issue local commission suo moto, if in the facts and circumstances of the case, it is deemed necessary that local investigation is required and it is proper for the purpose of eliciting
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any matter in dispute. Though exercise of these powers is discretionary with the Court, but in case to make a local investigation is requisite and proper in the facts and circumstances of the case, it should be exercised so that a final and just decision is rendered in the case.”
“5. If at all the Revision Petitioner himself is not confident as to where the boundary line between the Suit property and the adjacent Poramboke land lies, he ought to have filed the suit for demarcation of the boundary and not for bare injunction. When the failure to give the boundaries of the suit property was made as a ground for holding that the Revision Petitioner could not have been in possession of the suit property, such a finding could not be sought to be nullified by seeking appointment of a Commissioner to fix the boundary after measuring the suit property. If at all there is any defect in the plaint, the Revision Petitioner could have very well sought the permission of the Court to withdraw the Suit and file a fresh Suit projecting the absence of proper description of the Suit property as formal and technical defect. Without doing it, the Revision Petitioner has chosen to indirectly covert the bare injunction Suit into one for identifying and fixing the boundary of the Suit property. The learned Lower Appellate Judge has rightly held that the Application could not be maintained in view of the fact that already a Commissioner appointed by the Trial Court had visited the Suit property and submitted a Report and Plan, which were marked as Exs.C1 and C2.”
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07.07.2014
ogy
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R.MALA,J.
ogy
To
CRP (PD) No.447 of 2014
07.07.2014
2 issues framed by the court
Whether a plaintiff filing a suit for bare injunction is entitled to appoint an Advocate Commissioner to collect evidence to prove possession.
Whether the trial Court was correct in dismissing the application for appointment of an Advocate Commissioner.
Colour shows how this judgement treated each authority
Chandrasekaran & 6 others vs. V.Doss NaiduReferred¶8
2006 (2) LW 159 (Chandrasekaran & 6 others vs. V.Doss Naidu)
R.Sankarappan vs. R.JayachandranReferred¶9
2006 (4) LW 970 (R.Sankarappan vs. R.Jayachandran)
Chinnathambi & 2 others vs. AnjalaiReferred¶10
2006 (4) LW 516 (Chinnathambi & 2 others vs. Anjalai)
Meenakshi vs. Vennila and anotherReferred¶11
2008 (5) CTC 181 (Meenakshi vs. Vennila and another)
Thangaraj vs. PappathiReferred¶12
2014 (2) CTC 68 (Thangaraj vs. Pappathi)
Radhammal
Baskar
G.Prabakar
G.Parthasarathy
R.MALA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
