Point of Law : Dispute of property – Appointment of Commission necessary to identify the property.

JUDGMENT :

A. BADHARUDEEN, J.

1. Is there any rigid rule that a Commissioner with assistance of Surveyor to measure the plaint schedule property shall not be appointed in any contingency, in a Suit for simple injunction?

2. This Original Petition (Civil) has been filed under Article 227 of the Constitution of India. The petitioner herein is the plaintiff in O.S. No. 148/2018 pending before the Munsiff Court, Perumbavoor. He is aggrieved in the matter of dismissal of I.A. No. 2268/2019 filed by the petitioner, who is the plaintiff in the above Suit, to appoint a Survey Commission to measure out the properties of the plaintiff as well as the defendants on the basis of the title deed to locate the same specifically.

3. As per order dated 29.06.2020, the learned Munsiff dismissed the application mainly on the ground that in a Suit for simple injunction, the question to be decided was whether the plaintiff had possession over the plaint schedule property and in such a Suit the commission report already filed along with rough sketch would be sufficient to decide the dispute between the parties.

4. Heard both sides in detail.

5. The learned counsel for the petitioner argued that though the Suit is one for simple injunction, in the written statement filed by the defendants, the nature and lie of the plaint schedule properties were disputed and, therefore, it is highly necessary, in the interest of justice, in order to protect the right of the plaintiff, to measure the property to get a survey plan by locating the lie of the property with clarity.

6. Per contra, it is submitted by the learned counsel for the respondents that in a Suit for simple injunction there is no necessity to appoint a survey commission. Unreported decisions in Chinnamma and Another vs. Antony and Another, W.P. (C) No. 23089/2009 and Thai Valappil Narayanan vs. Kulangara Shanthan, O.P. (C) No. 491/2010, were placed in this regard. In the decision in Thai Valappil Narayanan's case while dealing with a Suit for prohibitory injunction against demolition of boundary and trespass, a learned Single Judge of this Court observed as under:

“2. I am unable to agree with that argument of learned counsel. It is seen that the suit is merely for a decree for prohibitory injunction against respondent demolishing boundaries, trespassing into it or constructing a new road along the suit property. Court fee for the said purpose is paid under Section 27(c) of the Court Fees and Suits Valuation Act. In a suit for injunction except O.P. (C) No. 491/2010 for the purpose of proving possession if absolutely necessary, issue regarding title is irrelevant. Hence it is not necessary in a suit for injunction of this nature to raise an issue regarding title. Advocate Commissioner has inspected the property and submitted reports. It is true that property of respondent is situated on the west of the suit property. But, there again there is no dispute regarding the boundary in between. Advocate Commissioner has reported about a way through the suit property. It is in the above circumstances that the learned Munsiff has observed that no question of survey commission is involved and what is required to be proved is only whether respondent has right of access through the suit property. May be, being a suit for injunction petitioner has to provide that property is situated within defined boundaries. But here there is no dispute regarding boundaries. On the facts of the case a survey commission is not required. There is no reason to interfere with the impugned order.”

7. In another decision in Chinnamma and Another vs. Antony and Another, W.P. (C) No. 23089/2009, the learned Single Judge has, while dealing with an application for appointment of a Commissioner with assistance of a Surveyor which was dismissed by the court below, held as under:

“In a suit for injunction also, where the description of the suit property is challenged by the defendants setting forth a contention that the allegations raised in the p