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HIGH COURT OF MADRAS
Honourable Mr.Justice P. DHANABAL
Selvanayagi – Appellant
Versus
Malliga – Respondent
Commissioner - Civil Revision Petition - Order XXVI Rule 9 - The court emphasized the necessity of appointing a Commissioner for measuring property to determine encroachment, reinforcing the principle that local investigations can clarify ambiguities in property disputes.
Fact of the Case:
The petitioner sought the appointment of a Commissioner to measure property and report on alleged encroachments by the 2nd defendant, whose claims conflicted with the petitioner's ownership through a contested Will. Despite dismissal by the Trial Court on procedural grounds, the petitioner argued that their case warranted such an appointment.
Finding of the Court:
The court found that despite a significant delay in filing for the appointment of a Commissioner, the ambiguity regarding property boundaries warranted the action to establish evidence of encroachment. The court noted that the Trial Court erred in dismissing the request solely based on the timing of the application.
Issues: Whether the appointment of a Commissioner to measure the disputed property was justified given the circumstances of the case, including an alleged encroachment and the timing of the application.
Ratio Decidendi: The court held that the need for clarity in property disputes often necessitates the appointment of a Commissioner, even late in the proceedings, as it serves the interest of justice to ensure accurate determination of property boundaries.
Final Decision: The Civil Revision Petition is allowed, and the Trial Court's order is set aside with the appointment of an Advocate Commissioner, conditioned upon the petitioner depositing a fee.
O R D E R
This Civil Revision Petition has been preferred as against the order dated 13.07.2022 passed in I.A. No. 1 of 2021 in O.S. No. 865 of 2010 on the file of the Principal Sub Court, Chengalpattu, wherein, the petitioner herein has filed a petition for appointment of Commissioner to measure the property with the help of Surveyor and report with plan and note down the physical features and construction by the 2nd defendant in the suit property and the same was dismissed.
2. The case of the petitioner is that he is the plaintiff in the main suit and the suit was filed for the relief of declaration and permanent injection, mandatory injection, recovery of possession and for damages. The 2nd defendant trespassed into the suit property and constructed a building on the south side of the suit property. The 2nd defendant also admitted the construction, but according to him, he constructed a house in his property. Even during the cross examination also, he stated that he constructed the house in his property not in the suit property. Therefore, by appointment of Commissioner to measure the suit property with the help of Surveyor and to locate the extent of trespass, extent of encroachment has to be ascertained. Therefore, he filed petition for appointment of commissioner and the same was dismissed by the Trial Court. By allowing this petition, no prejudice would be caused to the other side.
3. The case of the respondent is that the petition for appointment of Commissioner to measure the suit property with the help of Surveyor is not at all maintainable. The petitioner is claiming the property through Will dated 30.12.1996 and the said Will was created on the same is sham and fabricated one. The petitioner is no way connected with the suit property and she is not in possession at any point of time. The 1st respondent and her husband were in possession and enjoyment of the suit property. The 1st respondent sold the suit property through sale deed dated 16.06.2008 in favour of 2nd respondent and the 2nd defendant is a bona fide purchaser. From the date of purchase, the 2nd respondent is in lawful possession and enjoyment of the suit property. Already, the plaintiff's side witnesses were examined and now the case is posted for examination of defendant's side further witnesses. At this stage, the petitioner filed a petition to measure the property with the help of Surveyor and the same is unsustainable in law. Therefore, the petition is liable to be dismissed.
4. Before the Trial Court, no oral or documentary evidences adduced on either side. The Trial Court, after hearing both sides, dismissed the petition.
Aggrieved by the said order, the present Civil Revision Petition is filed. 5. The learned counsel appearing for the petitioner would contend that the petitioner is the plaintiff in the main suit and she filed suit for the relief of declaration, permanent injunction, mandatory injunction and for recovery of possession. In fact, a part of suit property was encroached by the defendants and they constructed a building. In order to prove the exact extent of encroachment, the Advocate Commissioner has to be appointed to measure the property with the help of the Surveyor. By appointing the Commissioner, no prejudice would be caused to the other side. But the Trial Court failed to consider the genuine claim of the petitioner and dismissed the petition since it was filed at the fag end of trial and there is a dispute in respect of the identification of the property. In fact, the defendant admitted the construction of the building in the property, but according to him, it was constructed in his property but the construction was made in the petitioner's property. Therefore, the appointment of Commissioner is very essential.
6. The learned counsel appearing for the respondents would contend that the suit was filed in the year 2010 and already the plaintiff's side witnesses were examined and some of the witnesses were examined on the side of the d
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