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2023 Supreme(Mad) 2937
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
C. Saravanan, J.
Govindan, S/o. Chithira Azhagu - Petitioner
Versus
Malaichamy, S/o. Karuppiah – Respondent
C.R.P.(MD)No.711 of 2022 and C.M.P.(MD)No.2924 of 2022
Decided On : 13-04-2023
Advocate Appeared:
For the Petitioner: Mr. S. Srinivasa Raghavan
For the Respondent: Mr. M.S. Jeyakarthick
The main legal point established in the judgment is the requirement for a clear and unambiguous report from the Advocate Commissioner in property dispute cases to enable the Court to resolve the dispute effectively.
Headnote:
Advocate Commissioner - Property Dispute - Order XXVI Rule 9 of C.P.C. - Tamil Nadu Survey and Boundaries Act, 1923 - [Order XXVI Rule 9 of C.P.C.]
Fact of the Case:
The petitioner challenged the rejection of the application for appointment of an Advocate Commissioner under Order XXVI Rule 9 of C.P.C. by the Sub-Court, Sivagangai, based on the report of the Advocate Commissioner in a property dispute case.
Finding of the Court:
The Court found that the report of the Advocate Commissioner, which formed the basis of the judgment and decree of the District Munsif Court, Sivagangai, was ambiguous and did not meet the requirements for the Court to resolve the dispute. The impugned order was set aside, and the Civil Revision Petition was allowed, directing the appointment of a new Advocate Commissioner for inspection of the property and submission of a clear report.
Issues: The main issue was the rejection of the application for appointment of an Advocate Commissioner and the adequacy of the report provided by the previous Advocate Commissioner in the property dispute case.
Ratio Decidendi: The Court's decision was influenced by the ambiguity in the report of the Advocate Commissioner, which led to the decree based on insufficient information. The Court emphasized the need for a clear report to resolve the property dispute.
Final Decision: The impugned order was set aside, and the Civil Revision Petition was allowed, directing the appointment of a new Advocate Commissioner for inspection of the property and submission of a clear report.
ORDER :
Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decretal order dated 31.08.2021, made in I.A.No.1 of 2020 in A.S.No.53 of 2018, on the file of the Sub-Court, Sivagangai.
The unsuccessful defendant in O.S.No.158 of 2013 is the petitioner before this Court. The petitioner is challenging the impugned fair and decreetal order dated 31.08.2021, passed by the Sub-Court, Sivagangai, in I.A.No.1 of 2020 in A.S.No.53 of 2018.
2. By the impugned order, the Sub-Court, Sivagangai, has rejected I.A.No.1 of 2020 in A.S.No.53 of 2018 filed by the petitioner under Order XXVI Rule 9 of C.P.C. for appointment of an Advocate Commissioner. Relevant portion of the impugned order reads as under :-
3. The respondent herein had filed O.S.No.158 of 2013 for declaration before the District Munsif Court, Sivagangai, for declaration, recovery of possession of the suit property and for mandatory injunction to remove the encroachment allegedly made by the petitioner in the suit property.
4. In the said suit, the respondent/plaintiff had also filed I.A.No.1219 of 2013 for appointment of an Advocate Commissioner under Order XXVI Rule 9 of C.P.C. The application was allowed. The Advocate Commissioner appointed is said to have inspected the suit property on 15.02.2014 and had also given a report, dated 11.04.2014, before the District Munsif Court, Sivagangai.
5. The said suit was decreed by the learned District Munsif, Sivagangai, vide judgment and decree, dated 04.04.2018, shifting the burden of proof on the petitioner by stating that he has not discharged the burden of proof. Relevant portion of the Judgment in O.S.No.158 of 2013 of the District Munsif Court, Sivagangai, dated 04.04.2018, reads as under:-
6. Aggrieved by the judgment and decree of the District Munsif Court, Sivagangai, the petitioner filed A.S.No.53 of 2018 before the Sub-Court, Sivagangai wherin the petitioner filed I.A.No.1 of 2020 under Order XXVI Rule 9 of C.P.C., for appointment of Advocate Commissioner to give a report stating that the property was not properly measured by the Advocate Commissioner earlier appointed in I.A. No. 1219 of 2013 in O.S.No.158 of 2013 on the file of District Munsif Court, Sivagangai,. The Sub-Court, Sivagangai, has rejected I.A.No.1 of 2020 in A.S.No.53 of 2018 filed by the petitioner.
7. The Sub-Court, Sivagangai, while dismissing I.A.No.1 of 2020 has proceeded to uphold the views of the learned District Munsif, Sivagangai, based on the Advocate Commissioner's report in I.A.No.1219 of 2013. Relevant portion of the impugned order has already been reproduced in the beginning of this order.
8. The learned counsel for the petitioner submits that the Sub-Court, Sivagangai, has committed a grave error in rejecting the application filed for appointment of Advocate Commissioner as the property was not properly measured by the Advocate Commissioner pursuant to the directions given by the District Munsif Court, Sivagangai, in O.S.No.158 of 2013 while allowing I.A.No.1219 of 2013.
9. It is further submitted that the report of the Advocate Commissioner, which formed the basis of the judgment and decree, dated 04.04.2018 of the District Munsif Court, Sivagangai, in O.S.No.158 of 2013, was liable to be interfered with by the Sub-Court, Sivagangai, in A.S.No.53 of 2018, as report of the Advocate Commissioner was full of discrepancy and was of no use for the Sub-Court, Sivagangai, to decide as to whether the judgment and decree, dated 04.04.2018 of the District Munsif Court, Sivagangai, was to be either affirmed or reversed.
10. It is submitted that the Advocate Commissioner should have measured the property from the northern side of the suit property, which ought to have been undertaken by the Advocate Commissioner in accordance with the provisions of the Tamil Nadu Survey and Boundaries Act, 1923 and the Rules made thereunder.
11. The present Civil Revision Petition is opposed by the respondent respondent/plaint
