In a suit for permanent injunction based on an unregistered othi deed, the appointment of a Commissioner to note down the physical features of the property is not necessary to decide the issue of possession.

Headnote:
Fact of the Case:

The petitioner filed a revision petition against the order of the trial court, which dismissed his application for the appointment of a Commissioner to note down the physical features of the property in dispute in a suit for permanent injunction.
Finding of the Court:

The High Court dismissed the revision petition, holding that the appointment of a Commissioner was not necessary to decide the issue of possession in the suit, which was based on an unregistered othi deed.
Issues: Whether the appointment of a Commissioner was necessary to decide the issue of possession in a suit for permanent injunction based on an unregistered othi deed.
Ratio Decidendi: The High Court held that the appointment of a Commissioner was not necessary because:- The suit was for permanent injunction, and the physical features of the property were not required to be brought on record to decide the issue.- The possession of the property could be settled only in the trial on the basis of evidence.- It was the duty of the plaintiff to establish his case on the basis of oral and documentary evidence, and not the duty of the defendant to disprove the plaintiff's case.
Final Decision: The High Court dismissed the revision petition and held that the trial court's order was correct.

ORDER

This petition has been filed against the order dated 19.01.2024 made in I.A.No.02 of 2023 in O.S.No.96 of 2023 on the file of the District Munsif Court, Uthamapalayam, Theni District.

2.Suit in O.S.No.96 of 2023 was filed by the respondent herein seeking relief of permanent injunction and for cost. Pending suit, the revision petitioner received the summons to appear before the trial Court and during the trial process he filed I.A.No.2 of 2023 under Order 26 Rule 9 of C.P.C. seeking appointment of Commissioner to note down the physical features with the following averments.

3.Along with the plaint an othi document dated 01.11.2022 was enclosed. The description of the property in the document does not tally with the ground situation. In the plaint it has also stated that 20 cents were sold to one Sengodi. It is omitted in the plaint. At the instigation of the above said Sengodi by mentioning wrong description of the property, plaint is presented. The above said Sengodi obtained service connection in the property, which is not connected to him. Therefore, unless a Commissioner is appointed, the physical features may not be brought on record.

4.That was resisted by the respondent stating that the third defendant executed an Othi deed in favour of the plaintiff and handed over the possession also. Evidencing the same unregistered othi document was also entered between them. In the othi document, it is mentioned that till the period is over it can be irrigated from the bore well situated on the southern side of the property, which belongs to one Sengodi. When the defendant tried to disturb the possession, the suit was filed by the plaintiff.

5.After hearing both sides, the trial Court dismissed the petition observing that appointment of Commissioner is absolutely not necessary, since the main suit is one for permanent injunction. To decide the issue, the physical features available in the ground is not required. Moreover, the possession of the property can be settled only in the trial.

6.Heard the learned counsel for the petitioner. Even at the time of argument a query was made to the counsel on record for the revision petitioner as to the necessity of filing the commissioner petition. He would submit that at the instance or instigation of one Sengodi, the suit is filed by the plaintiff. Moreover at the instigation of the Sengodi only a document also been created. So unless the physical features to show the possession of the property is brought on record, the issue cannot be decided.

7.But this Court is completely not in position to agree with the lines of argument advanced by the petitioner. It is a simple suit for permanent injunction on the basis of the unregistered othi deed alleged to have been executed by the third defendant in favour of the plaintiff. Whether that othi is reliable and whether the plaintiff is in possession of the property in pursuance of the above said othi is matter for consideration by the trial Court on the basis of evidence. Simply because of the contradictions between othi deed and the description mentioned in the plaint, appointment of commissioner may not be required. It is the duty of the plaintiff to establish his case on the basis of the oral and documentary evidence and certainly it is not the duty of the defendant to disprove the case of the plaintiff. It is not a case of rival claim over title. The title is admitted by the plaintiff that it belongs to the third defendant. Whether the above said third party namely Sengodi is directly or indirectly involved in the issue can be decided by the trial Court on the basis of the evidence. I find that absolutely the petition filed by the revision petitioner is unnecessary.

8.Accordingly, this civil revision petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.

06.03.2024 Index : Yes / No Internet : Yes / No TM To

1.The Principal Subordinate Judge, Karur.

2.The Section Officer, E.R.Section/V.R.Section, Madurai Bench of

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