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HIGH COURT OF MADRAS
Honourable Mr Justice V. LAKSHMINARAYANAN
K. Palanisamy – Appellant
Versus
P. Palanisamy – Respondent
Injunction - Mandatory Injunction - Specific Relief Act, Section 39 - Order XXVI Rule 9
Fact of the Case:
The plaintiff sought a mandatory injunction to protect a common cart tract that had been damaged by the defendants. The existence of the cart tract was disputed by the defendants, who claimed it didn't exist and that the plaintiff was trying to collect evidence improperly.
Issues: Whether the appointment of an Advocate Commissioner was justified to ascertain the existence of the cart tract claimed by the plaintiff, despite objections from the defendants.
Ratio Decidendi: The court held that an Advocate Commissioner can be appointed under Order XXVI Rule 9 for elucidating matters in dispute, even when evidence is being collected. This does not equate to improper evidence gathering but is crucial for determining the existence of the claimed cart tract.
Final Decision: The order of the learned District Munsif in I.A.No.4 of 2022 was set aside, allowing the appointment of an Advocate Commissioner.
Based on the provided legal document, the key points are as follows:
The case involves a dispute over the existence and protection of a common cart tract that was allegedly damaged by the defendants (!) (!) .
The plaintiff seeks a mandatory injunction to preserve the cart tract, asserting that it is a common pathway created by mutual agreement and used for decades (!) (!) .
The defendants deny the existence of the cart tract, claiming it does not exist and that the plaintiff is attempting to improperly gather evidence (!) (!) .
The court emphasizes that the appointment of an Advocate Commissioner is permissible under the relevant procedural rules for elucidating matters in dispute, including the existence of physical features like the cart tract (!) (!) .
The court clarifies that the Advocate Commissioner’s report is considered evidence and can be used to establish facts such as the existence or non-existence of the cart tract (!) (!) .
The court notes that the suit is primarily concerned with the existence of the cart tract, which is a matter in dispute, and that this can be effectively investigated through the appointment of an Advocate Commissioner (!) (!) .
The court rejects the argument that the suit's focus on a mandatory injunction rather than a declaration of title precludes the appointment of an Advocate Commissioner, emphasizing that elucidation of facts is permissible in such cases (!) (!) .
The court also dismisses the objection that the evidence had already been recorded, stating that the appointment of an Advocate Commissioner can occur at this stage to aid in fact-finding (!) (!) .
It is highlighted that the existence of the cart tract may not be reflected in revenue records, as it is a result of an agreement between parties, and such physical features can be established through inspection (!) (!) .
The court concludes that the application for appointment of an Advocate Commissioner should be allowed, and the District Munsif is directed to appoint an experienced Commissioner and surveyor to inspect the property and submit a report (!) .
The order of the lower court dismissing the application is set aside, and the revision petition is allowed with no costs (!) (!) .
Overall, the court affirms the procedural correctness of appointing an Advocate Commissioner for elucidating disputed physical features in property disputes, especially when such features are not conclusively documented in official records.
ORDER
This civil revision petition arises against the order of the learned District Munsif at Perundurai in I.A.No.4 of 2022 in O.S.No.145 of 2018 dated
09.10.2023.
2. The plaintiff is the civil revision petitioner.
3. O.S.No.145 of 2018 was presented for the relief of mandatory injunction and other allied reliefs. According to the plaintiff, the suit schedule mentioned property and other properties originally belonged to one Ramaya Gounder and his co-sharers. They created a 10 feet wide pathway over S.F.No.52/A for convenient enjoyment of the said property. In order to enjoy their properties individually, Ramaya Gounder, one Koppana Gounder, and other sharers entered into a partition deed on 18.12.1975.
4. By virtue of this partition deed, a 10 feet wide cart tract was shown as common to all the owners and the D schedule mentioned property fell to the share of the petitioner's father. The cart tract, that had been set apart for the common use of all the owners, had been left open for several decades, till the death of Koppana Gounder on 02.02.2007. Subsequently, his legal heirs Pavathal, Palaniammal, Kolandhayammal, and Pavalakodi executed a release deed for the suit schedule mentioned property in favour of the plaintiff on
09.04.2012.
5. The plaintiff would plead that the only way to access his property is through the common cart tract. On 15.12.2018, the defendants dug up a pit to an extent of 100 feet in and over the said cart tract and thereby damaged the cart tract. In order to note the existence of the cart tract as well as to measure the damages that had been caused to it, he took out an application under Order XXVI Rule 9 seeking appointment of an Advocate Commissioner to inspect the property. This application was received in I.A.No.4 of 2022.
6. Notice was issued to the respondents 1 and 2 who are the defendants in the suit. They filed a counter stating that no such cart tract exists and as DW1 was in the witness box, this application was an attempt by the plaintiff to drag on the matter.
7. The learned District Munsif came to a conclusion that the plaintiff is attempting to collect evidence by appointment of an Advocate Commissioner and that, the plaintiff must prove the existence of cart tract only by way of documentary evidence, and in any event, it is an attempt by the plaintiff to collect evidence and fill up the lacuna in his case. Finally she would point out that the suit has been pending for more than 5 years and whatever damage that the defendant would have caused to the cart tract, would have vanished by the lapse of time and hence, dismissed the said petition. Against the said order, the present civil revision petition arises.
8. Heard Mr.C.Ramaraj for the civil revision petitioner and Mr.N.S.Suganthan for the respondents 1 and 2.
9. Mr.C.Ramaraj would invite my attention to the plaint and the averments made in the affidavit and would contend that apart from documentary evidence, an additional way in which the plaintiff may prove the existence of cart tract is by appointment of Advocate Commissioner. He would state that dismissal of the application on the basis that the same is an attempt to fill up the lacuna is untenable and would hence plead that revision be allowed and the order be set aside.
10. Per contra, Mr.N.S.Suganthan appearing for the respondents 1 and 2 would submit that the suit is at the stage of examination of DW1 and at this stage, an Advocate Commissioner need not be appointed. He would further point out that, from the order of the learned Trial Judge, the application amounts to collection of evidence through the good office of the Advocate Commissioner and that, having failed to prove his case, the plaintiff is attempting to fill up the lacuna by filing this application. He would state that the existence of cart tract can be proved only by documents. Relying upon the pleadings in paragraphs 7 and 8 of the written statement, he would urge that the defendants have taken possession of the property purs
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