The main legal point established in the judgment is that the Commissioner appointed under Order 26 Rule 9 CPC cannot give a finding regarding possession of a property and the court should not rely solely on the Commissioner's report for determining possession.

JUDGMENT :

(Prayer: The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.184 of 1995 dated 08.06.2004 on the file of the Sub Court Ariyalur, reversing the judgment and decree made in O.S.No.112 of 1994 dated 16.10.1995 on the file of the Additional District Munsif Court, Ariyalur.)

1. The plaintiffs in O.S.No.112 of 1994 on the file of the District Munsif Court, Ariyalur, are the appellants herein. The suit in O.S.No.112 of 1994 had been filed by the three plaintiffs namely, Rajayal, her son Kathirvel and daughter Amudhavalli, against two defendants namely, Gangajalam and Pattu who are both sons of Samikannu Padaychi, seeking declaration of title and recovery of possession of vacant land measuring 3 cents in SF.No.74/16 at Ponparappikudikadu village, Sendurai Sub- Regsitry, Ariyalur Taluk. The said suit had been decreed by judgment dated 16.10.1995.

2. The defendants/legal representatives of the defendants then filed in A.S.No.184 of 1995 before the Sub Court Ariyalur. By judgment dated 08.06.2004, the appeal was allowed, thereby reversing the decree granted by the Trial Court, in effect dismissing O.S.No.112 of 1994. This has necessitated the plaintiffs to file the present Second Appeal.

3. The Second Appeal had been admitted on the following substantial questions of law:-

“1.Whether the Lower Appellate Court is correct in law in concluding on the basis of Exs.C1 and C2 Commissioner's Report and Plan that the respondents are in possession, especially when the Advocate Commissioner is not competent to find out who is in possession and it is primary duty of the Court?

2. When Exs.A1 to A3 coupled with the evidence of PW1 and PW2 clearly demonstrates the case of the appellants, whether the lower Appellate Court is correct in law in non-suiting the appellants?”

O.S.No.112 of 1994 (Additional District Munsif Court, Ariyalur):-

4. The plaintiffs contended that the suit property and vacant land surrounding it originally belonged to Aiyakannu Padayachi. This was comprised in S.No.74/16 out of a larger area measuring 23 cents. Out of the 23 cents, Aiyakannu Padayachi sold 7 ½ cents to Chinnathambi Padayachi. Chinnathambi Padayachi had a son Kathirvel and the 1st plaintiff is the widow of the said Kathirvel and the 2nd and 3rd plaintiffs are the son and daughter of the said Kathirvel. The properties sold to Chinnathambi Padayachi totally measuring 7 ½ cents can be divided as plots 1 and 2 each measuring 3 ¾ cents. Chinnathambi Padayachi in turn sold 3 ¾ cents which would be 1/2 of his holding and which is stated to be plot No.2 to Samikannu Padayachi by sale deed dated 12.07.1953. Samikannu Padayachi is the father of the 1st defendant and husband of the 2nd defendant.

5. There were further transactions in the property. Aiyakannu Padayachi after the sale of 7 ½ cents, still retained 15 ½ cents. He devolved that to his son Pitchaimuthu who in turn executed a settlement deed dated 23.05.1965 to the 1st plaintiff Rajayal/wife of Kathirvel. This would indicate that the plaintiffs therefore consolidated their holdings which would mean that they were entitled to 19 ¼ cents out of the original holding of 23 cents of Aiyakannu Padayachi. The balance 3 ¾ cents had been conveyed to Samikannu Padayachi. It had been contended that however, the defendants took possession also of 3 additional cents immediately to the North of their 3 ¾ cents. Seeking declaration of title to that particular piece of land of 3 cents and recovery of possession, the suit had been filed.

6. A written statement had been filed on behalf of the defendants and they claimed that Samikannu Padayachi had actually purchased 3 cents of vacant land and a house site to the South of the vacant land. They therefore asserted that the 3 cents which is disputed and for which the plaintiffs had claimed declaration of title had been actually conveyed to Samikannu Padayachi by Chinnathambi Padayachi and that their possession was lawful. They disputed that t