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2009 Supreme(Mad) 3254
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R. SUDHAKAR
K. Kandasamy & Others
Versus
The President Kannampalayam Town Panchayat & Another
C.R.P.Nos. 114 to 119 of 2009 and M.P.Nos.1 to 1 of 2009
Decided On : 21-08-2009
For the Petitioners:P. Valliappan, Advocate.
For the Respondents:V.R. Thangavelu, Government Advocate.
The relevance of multiple Advocate Commissioners' reports for effective adjudication of the suit.
Headnote:
Advocate Commissioner - Property Dispute - I.A.No.10 of 1999, I.A.No.12 of 1999, I.A.No.13 of 1999, I.A.No.313 of 1999, I.A.No.315 of 1999, I.A.No.319 of 1999 - The court discussed the appointment of Advocate Commissioners to note down physical features and measure the suit property with the assistance of Taluk Surveyor. The main legal point established is the relevance of multiple Advocate Commissioners' reports for effective adjudication of the suit.
Fact of the Case:
Three persons filed suits for permanent injunction, claiming ownership of a property. The respondents alleged encroachment and filed applications for appointment of Advocate Commissioners to inspect and measure the property.
Finding of the Court:
The Court found that the appointment of multiple Advocate Commissioners was unwarranted and directed both reports to be considered for the disposal of the suit on merits. The trial Court was directed to dispose of the suits expeditiously.
Issues: The main issue was the appointment of Advocate Commissioners and the relevance of their reports in a property dispute.
Ratio Decidendi: The Court held that the reports of multiple Advocate Commissioners should be considered for effective adjudication of the suit.
Final Decision: The orders of reappointing Advocate Commissioner and scrapping the second Advocate Commissioner's report were set aside. The Court directed the trial to consider both reports for the disposal of the suits and to expedite the proceedings.
Three persons viz., K.Kandhasamy, K.N.Sadhasivam and K.P.Palanisamy have filed the suit in O.S.No.3 of 1998, O.S.No.4 of 1998 and O.S.No.8 of 1998 respectively before the District Munsif Cum Judicial Magistrate Court, Palladam. All the above three persons are the revision petitioners/plaintiffs, claiming to be the owners of house property in Kadakkadu, Appachigounder Street, Kannampalayam, Palladam Taluk. The respondents panchayat took steps to lay the drainage and therefore a survey was made. According to the respondents, the revision petitioners/plaintiffs have encroached certain portion of the road margin. The case of the revision petitioners/plaintiffs is that they have not encroached the road margin.
2. According to the revision petitioners/plaintiffs the lands are promboke land and they are entitled to assignment and for the same appropriate application is pending before the competent authority. Fearing threat of a demolition and interference by the respondents, the above said three persons filed the three suits as above for permanent injunction. Written statement has been filed by the respondents, denying the averments made in the plaint.
3. Pending suits, the revision petitioners/plaintiffs filed I.A.Nos.10 of 1999, 12 of 1999 and 13 of 1999 respectively for appointment of an Advocate Commissioner to note down the physical features of the suit property. The Court below allowed the said I.As., and Shri.Dhanapalan, Advocate was appointed as Advocate Commissioner. He visited the suit site and filed a report, which is the first report.
4. Thereafter, the respondents Panchayats have filed I.A.Nos.313,315 and 319 of 1999 for appointment of an Advocate Commissioner to measure the suit property with the assistance of Taluk Surveyor and it was allowed. Mrs.Amudha Nagarajan, Advocate was appointed, as Advocate Commissioner to visit the suit property and to measure the suit property with the assistance of the Taluk Surveyor and file a report before the Court below and this order has also been implemented. A report has been filed and it is referred to as the second Advocate Commissioners report.
5. Thereafter, the respondents Panchayats have filed I.A.No.194 of 2003 in O.S.No.3 of 1998 to appoint the Advocate Commissioner, Advocate Shri Dhanapalan who was first appointed in I.A. 13 of 1999 to revisit and measure the suit property along with the assistance of Taluk Surveyor and note down the physical features and to file his report with plan. In the said O.S.No.3 of 1998, the respondents Panchayat also filed another I.A.No.728 of 2003 to scrap the Commissioners report filed by Ms.Amudha Nagarajan pursuant to the order in I.A.No.313 of 1999.
6. In O.S.No.4 of 1998 the respondents Panchayats filed I.A.No.729 of 2003 to scrap the Commissioners report pursuant to the order in I.A.No.315 of 1999. In the said O.S.No.4 of 1998 the respondents Panchayats filed another I.A.No.196 of 2003 to appoint the Advocate Commissioner Shri Dhanapalan as in the case of I.A.No.12 of 1999 to revisit the suit property along with the assistance of Taluk Surveyor and to note down the physical features and to file his report and plan property.
7. In O.S.No.8 of 1998 the respondents Panchayats have filed the I.A.No.730 of 2003 to scrap the Commissioners report of Ms.Amudha Nagarajan filed pursuant to the order in I.A.No.319 of 1999. In O.S.No.8 of 1998 the respondents Panchayats filed another I.A.No.195 of 2003 to appoint the Advocate Commissioner Mr.Dhanapalan as in the case of I.A.No.10 of 1999 to revisit the suit property along with the assistance of Taluk Surveyor and to note down the physical features of the suit property and to file his report and plan.
8. The above said six I.As filed by the respondents Panchayat were contested by the revision petitioners/plaintiffs. By order dated 25.01.2007, the above six I.As filed by the respondents were allowed. In effect the reports of the Advocate commissioner Mrs.Amutha Nagarajan in each of the c
