IMPORTANT POINT
The report of an Advocate Commissioner serves as evidence and can be contested, but it cannot be scrapped without a thorough examination of the evidence and the context of the ongoing trial.

ORDER :

(V. Bhavani Subbaroyan, J.)

The present petition has been filed to set aside the fair and decreetal order dated 16.03.2023 on the file of learned District Munsif, Sankari in I.A.No.5 of 2022 in I.A.No.39 of 2016 in O.S.No.10 of 2016.

2. The brief facts of the case are as follows:-

Originally the respondents 1 & 2/Plaintiffs had filed a suit in O.S.No.10 of 2016 for the relief of Declaration and consequential reliefs The petitioner herein is the 3rd Defendant in the suit. Pending original suit, an Interlocutory Application No.39 of 2016 was filed by respondents 1 & 2/Plaintiffs for Appointment of an Advocate Commissioner and the same was allowed and learned Advocate Commissioner has filed his report and plan on 23.02.2018, to which objections were filed by the petitioner as well as 3rd and 4th respondents on 28.01.2019 and 25.02.2019 respectively. Subsequently, the petitioner had filed a petition in I.A. No. 5 of 2022 under Section 151 of C.P.C. seeking an order to scrap the said Commissioner's Report, which has been filed in I.A.39 of 2016 in O.S.No.10/2016 on 23.02.2018 and Surveyor plan dated 13.11.2017. After considering the arguments on both the sides the trial court had dismissed the I.A.No.5 of 2022 filed by the Petitioner, hence this present Revision.

3. The learned counsel for the petitioner would contend that petitioner is the 3rd respondent in I.A.No.39 of 2016 and 3rd defendant in the above suit. The petitioner has filed her objection to Advocate Commissioner's report on 28.01.2019 and the Advocate commissioner failed to follow the principles of Survey and Boundaries Act to fix the boundaries of the Petition mentioned Property. In fact, no boundaries of Petition mentioned property was fixed and physical features of the petition mentioned property was not properly noted and explained in the commissioner report and separate rough plan was not filed by the commissioner to explain the physical features of the petition mentioned property.

4. The learned counsel for the petitioner also contends that the learned Advocate Commissioner has not taken any step to measure the 8 feet road though written instructions were produced to the Advocate Commissioner by the petitioner through her counsel at the time of measurement. The directions mentioned in the surveyor plan is not in accordance with the FMB sketch.

5. The learned counsel for the Petitioner in support of his contentions would place reliance on the decision reported in (2000) 1 L.W. 893 (Veppanathar @ Karuppannan and Anr. v. Kaliappan) wherein this Court has held thus:-

“Under Or.26, R. 10, Sub-rule (3) the Court, if it is dissatisfied with the report, can direct setting aside the Report or the Court can direct the Commissioner to rectify the defect or deficiency, taking into consideration the objections evidence let in, in that behalf and to file a supplementary Report”.

6. On going through the counter filed by the respondents 1 and 2/plaintiffs in I.A.No.5 of 2022, it could be seen that the learned Advocate Commissioner filed his report and plan on 23.02.2018 and the trial court had closed the petition on 23.02.2018 and also ordered to file objections, if any, within 15 days. But the petitioner has not filed any objections within time. The 1st respondent/Plaintiff No.1 has filed his chief proof affidavit on 24.08.2021 and then adjourned to 02.09.2021 for marking of documents, and then only the petitioner has filed her objections with a huge delay after filing the chief proof affidavit of PW1. The learned commissioner has visited the suit property after due notice to all parties and noted the physical features of the suit property and measured the suit property with the help of the qualified Taluk Surveyor and V.A.O. in the presence of the petitioner and her counsel and in the presence of the defendants 1 and 2 and their counsel. The measurements given in the commissioner's plan and in the F.M.B., are one and the same and the said petition was filed with a malaf