Full Judgment
V. Periya Karuppiah, J.
1. This Civil Revision Petition has been filed by the plaintiff against the order of dismissal dated 07.03.2008 passed by the District Munsif-cum-Judicial Magistrate, Nannilam in I.A. No. 362 of 2007 in O.S. 52 of 2007 the application seeking for an order of re-issuance of Warrant of Commission to inspect the suit property and to measure the same with the assistance of a qualified surveyor.
2. The brief facts of the case put forth by the respective parties before the trial Court are as follows:
(a) The suit was filed for bare injunction in respect of the suit Old S. No. 9/1 and New S. No. 9/3 measuring an extent of 12 cents and the application in I.A. No. 248 of 2007 was filed for interim injunction along with application in I.A. No. 249 of 2007 for appointment of Advocate Commissioner. On 10.08.2007 Advocate Commissioner was appointed and taking advantage of the delay of 4 days in the appointment of the Advocate Commissioner, the defendant highhandedly removed the old compound wall which was found place in the ancient partition deed of the year 1929 and put up a new compound wall. The learned Advocate Commissioner has not fulfilled the purpose of the warrant and submitted his report and rough sketch exceeding his limits. The plaintiff filed her objection. While that being so on 28.09.2007, the defendant had filed his written statement with all sorts of false allegations suppressing the real facts and stating that the plaintiff has got right over 10 cents only. In fact, as per the patta which was given 15 years back based on the partition deed of the year 1929, the plaintiff was having right over 12 cents. Therefore, in the interest of justice, the Advocate Commissioner should be redirected to inspect and measure the suit property again with the help of a qualified surveyor and submit a detailed report as to the features of the property along with a rough sketch. Hence, this petition.
(b) The defendant had not only resisted the claim of the plaintiff but also contended that the plaintiff had filed her objection to the Report of the Commissioner and the petition for re issuance of commissioner warrant has been filed in order to protract the proceedings.
3. The trial Court after having heard both sides, dismissed the application filed by the plaintiff for re issuance of Warrant of Commission to the Advocate Commissioner to inspect the entire suit property once again to measure the same with the assistance of a qualified surveyor and to file a detailed report along with rough sketch. Challenging the above said order of dismissal, the plaintiff preferred the present civilvil revision.
4. Heard both Ms.R.T.Shyamala, learned Counsel appearing for the revision petitioner and Mr.Srinath Sridevan, learned Counsel appearing for the respondent.
5. The learned Counsel for the revision petitioner would submit that the trial Court had misconstrued the fact and held that the re issuance of Warrant of Commissioner cannot be ordered to the same Commissioner, unless the earlier report of the Commissioner is scrapped and had wrongly dismissed the application filed by the plaintiff. The reasons given by the trial Court that the measurement of the property have been mentioned in the report of the Commissioner and the identity of the suit property is not in dispute, are not correct; whereas during the inspection the Commissioner did not measure the entire property of the plaintiff and had discover or locate the portion encroached by the defendant. She would further submit that the question of scrapping of earlier report of the Commissioner would not arise as the same Commissioner could be directed to measure the entire property with the assistance of a qualified surveyor and to file additional report with rough sketch drawn by the Surveyor. The trial Court has failed to distinguish the re issuance of Warrant of Commission with the issuance of the Second Commission and therefore, the order of the trial Court requires interference of this Court.
6. The learned Counsel appearing for the respondent would on the other hand submit that Commissioner who inspected the suit property had given measurement of the entire suit property. There is no necessity of measuring the suit property once again for the purpose of arriving at to a correct conclusion in the suit property. If the plaintiff really wants to get measured the entire property once again, she should have sought for scrapping of the earlier report and then only the Court could direct a fresh Commissioner or the same Commissioner to measure the entire property. He would in support of his contention cite the decisions of our High Court reported in Chokkalingapuram Thevangar Vardhaga Sangam, West Car Street, Chokkalingapuram, Arupukottai Town, through its President v. Chokkanathaswami Temple, Chokkalingapuram, Aruppukottai Town, represented by its Executive Officer (1996) MLJ (1) 254 for the proposition that the lapses in the report of the Advocate Commissioner cannot be a ground for appointment of second Commissioner; in Visvanadham v. Mangamma : AIR1930 Mad236 for the proposition that no second Commissioner shall be appointed without considering whether the first report of the Advocate Commissioner should be superseded or not; in Veppanathar alias Karuppannan and Anr. v. Kaliappan : 2000(3)CTC78 for the proposition of appointing second commissioner and re issuance of warrant of commission for supplementary report and Kitnammal v. Nallaselvan and Ors. : (2005)2MLJ227 for the proposition that second Advocate Commissioner cannot be appointed without scrapping the report filed by the first Advocate Commissioner.
7. Placing reliance on all the above said judgments of Madras High Court, he would submit that the earlier report of the Commissioner should be scrapped before the appointment of second Commissioner or re issuance of warrant to the same Commissioner for the new purpose is ordered. He would further submit that the trial Court was right in dismissing the application filed by the plaintiff for re issuance of commissioner warrant without seeking for scrapping of earlier report of the Commissioner and the same requires no interference of this Court.
8. I have given my anxious consideration on the submissions made on either side. On a careful perusal of the order passed by the trial Court it is seen that the reason for dismissal of the application was that the Commissioner had given measurement of the suit property promptly and that would be sufficient for adjudication of the dispute. On the other hand, it could be seen that the dispute between the plaintiff and the defendant is with regard to total extent of the suit property. The plaintiff claims right over 12 cents as the property was derived from her ancestors and she was recently issued with a patta in respect of 12 cents. It is also alleged that the defendant had attempted to put up constructions in the suit property measuring 12 cents and is attempting to dig foundation in the property belonging to her. It is the further case of the plaintiff that the extent of 12 cents belonging to her is encroached by the defendant which is shown as suit property. Therefore, the plaintiff had sought for measurement of entire 12 cents with reference to patta issued in her favour and to locate the same on land so as to find correct location in the case. According to the learned Counsel for the revision petitioner, the earlier report of the Advocate Commissioner even though depicted certain measurements, the same are not sufficient to come to the conclusion as to the total extent of the property belonged to the plaintiff. No doubt, the earlier commissioner had given measurement of the suit land and the said measurements are not sufficient to decide the issue in question as to whether the plaintiff is having in possession of 12 cents. If really, the right on 12 cents as claimed by the plaintiff is established by way of proving her title through evidence then, it could also be found that the plaintiff is entitled to be in possession of the said 12 cents; likewise if really, the property has already been occupied by the defendant and the same was in his enjoyment then, it is for the defendant to raise plea of his long possession. Unless, the 12 cents said to have been belonged to the plaintiff is located on land by the Commissioner with reference to the revenue records with the help of a Surveyor, the crux of the suit cannot be decided, since the measurements in the report already on record are insufficient to decide the issue. However, on the facts and the circumstances in the given case, the earlier report and rough sketch filed by the Advocate Commissioner need not be set aside. The judgments cited by the learned Counsel for the respondent would on the point that when the second commissioner is appointed, the report of the earlier Commissioner and sketch which may be contrary to the second Commissioner's report have to be scrapped. But the petitioner had applied for re issuance of the Warrant of Commission to the same Commissioner to measure the entire property which was not done by the Commissioner when the warrant of commission was issued to him at the earlier point of time. Therefore, it is nothing harm to order reissue of warrant of commission in order to get a supplementary report which has even been recognized in the judgment reported in Veppanathar alias Karuppannan and Anr. v. Kaliappan 2000 (III) TC 78. The relevant passage of which would run thus:
By setting aside the order, it does not follow that the report is accepted by this Court. I direct the lower court to consider the objections in detail along with other evidence and pass orders on the objections to the Commissioner's Report. Lower Court also will consider whether the defects or deficiency stated in the objection could be rectified by calling for supplement report for which necessary direction shall be given by the Court. Only if the Court feels that even supplementary report will not cure the same, the report shall be set aside and second report will be called for by appointing another commissioner.
9. Therefore, the trial Court was wrong in dismissing the application, as if the petitioner seeks an order for second commission, which was actually intended to clarify the earlier report of the Commissioner by way of re issuance of warrant of commission. Similarly, the trial Court was wrong in holding that the measurements given by the Commissioner in his first inspection are sufficient to decide the issue. Therefore, it has become necessary to interfere with the order of the trial Court in this revision. Accordingly, the civil revision petition is allowed and the impugned order of the trial Court dated 07.03.2008 passed by the District Munsif-cum-Judicial Magistrate, Nannilam in I.A. No. 362 of 2007 in O.S. 52 of 2007 is set aside. The trial Court is directed to re issue Commissioner Warrant to the very same Advocate Commissioner directing him to inspect the suit property again, measure the entire suit property with the assistance of a qualified Taluk Surveyor at the cost of the plaintiff and file a report in detail as to the extent, boundaries and features of the suit property along with the sketch of the Taluk Surveyor. The Advocate Commissioner is entitled for the remuneration for the intended purpose at the same rate which was given to him on the earlier occasion. The plaintiff shall bear the remuneration of the Advocate Commissioner as well as the Taluk Surveyor. With these directions, this Civil Revision Petition is ordered. No cost. Consequently, connected Misc. Petition is closed.