Appointment of an Advocate Commissioner is vital under Order XXVI Rule 9 in land disputes to ensure effective adjudication and gain necessary evidence for property encroachment issues.

ORDER :

R. KALAIMATHI, J.

This Civil Revision Petition is filed by the sole plaintiff, aggrieved by the order passed in I.A.No.233 of 2022 in O.S.No.165 of 2022 dated 04.08.2022 on the file of the Principal Subordinate Court, Tindivanam. A suit was filed by the revision petitioner/plaintiff against the respondents for the relieves of declaration of title, mandatory injunction to remove the encroached portion, for recovery and for permanent injunction not to proceed with the construction. The suit property is a vacant plot measuring about 1090 sq.ft. (0.002 1/2 cent) situated at Tindivanam Taluk, Avaraipakkam S.R.D, Salavathi Village as per the Natham Land Tax Scheme 140/3B in New Survey No.140/3, Old Survey No.90/3.

2. An application was filed by the plaintiff under Order XXVI Rule 9 of CIVIL PROCEDURE CODE , 1908 for appointment of an Advocate Commissioner to measure the suit property with the help of Surveyor and Village Administrative Officer, and to file a report along with sketch.

3. The respondents resisted the said application by filing counter stating that, as the respondents refused to sell their property to the petitioner and the 1^st respondent has purchased the adjacent property by a sale deed dated 19.09.2002 from one Jeyakrishnan, son of Kannappa Gounder and it has been further contended that, in order to protract the proceedings, the application was filed based on false documents in order to gain unlawfully.

4. The trial Court has observed that, considering the nature of the relieves sought in the plaint, the application filed under Order XXVI Rule 9 of CPC is unnecessary and chosen to dismiss the application. Aggrieved, the plaintiff has preferred this revision petition.

5. Ms.R.A.Thejashwini, learned representing counsel for the petitioner would vehemently contend that, as one of the relieves sought for in the plaint is for recovery of possession, in order to prove the same, the plaintiff at the initial stage itself filed the application under Order XXVI Rule 9 of CPC. To buttress her arguments, the following judgments have been referred to:

1. Haryana Waqf Board Vs. Shanti Sarup and others reported in 2008 (8) SCC 671 and

2. Vaithinattar and another Vs. Sakkubai Ammal reported in AIR 2004 Madras 419.

6. The Hon'ble Supreme Court in Haryana Waqf Board Vs. Shanti Sarup and others reported in 2008 (8) SCC 671 has held that:

“...Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC.”

7. It is relevant to note that in Vaithinattar and another Vs. Sakkubai Ammal reported in AIR 2004 MADRAS 419, this Court had an occasion to deal with the matters which relates to an application under Order XXVI Rule 9 of CPC, wherein this Court has observed as follows:

17. None, particularly, the plaintiff who claims that the suit property is lawfully belonging to her has been encroached upon by the defendants and annexed to their lands has filed an application for the appointment of Commissioner to measure the property and submit a report with sketch, and this Court wonders as to why the plaintiff has not resorted to file an application nor even the defendants thought of in this line, as a result of which the Courts have to arrive at their own conclusions based on the paltry evidence placed on record and, therefore, since the best of evidence in cases of such nature could have been obtained only by appointment of a Commission