Hon'ble Mr.Justice R.SUDHAKAR
Three persons viz., K.Kandhasamy, K.N.Sadhasivam and K.P.Palanisamy have filed the suit in O.S.No.3 of 1998, O.S.No.4 of 1998 and O.S.No.8 of 1998 respectively before the District Munsif Cum Judicial Magistrate Court, Palladam. All the above three persons are the revision petitioners/plaintiffs, claiming to be the owners of house property in Kadakkadu, Appachigounder Street, Kannampalayam, Palladam Taluk. The respondents panchayat took steps to lay the drainage and therefore a survey was made. According to the respondents, the revision petitioners/plaintiffs have encroached certain portion of the road margin. The case of the revision petitioners/plaintiffs is that they have not encroached the road margin.
2. According to the revision petitioners/plaintiffs the lands are promboke land and they are entitled to assignment and for the same appropriate application is pending before the competent authority. Fearing threat of a demolition and interference by the respondents, the above said three persons filed the three suits as above for permanent injunction. Written statement has been filed by the respondents, denying the averments made in the plaint.
3. Pending suits, the revision petitioners/plaintiffs filed I.A.Nos.10 of 1999, 12 of 1999 and 13 of 1999 respectively for appointment of an Advocate Commissioner to note down the physical features of the suit property. The Court below allowed the said I.As., and Shri.Dhanapalan, Advocate was appointed as Advocate Commissioner. He visited the suit site and filed a report, which is the first report.
4. Thereafter, the respondents Panchayats have filed I.A.Nos.313,315 and 319 of 1999 for appointment of an Advocate Commissioner to measure the suit property with the assistance of Taluk Surveyor and it was allowed. Mrs.Amudha Nagarajan, Advocate was appointed, as Advocate Commissioner to visit the suit property and to measure the suit property with the assistance of the Taluk Surveyor and file a report before the Court below and this order has also been implemented. A report has been filed and it is referred to as the second Advocate Commissioner's report.
5. Thereafter, the respondents Panchayats have filed I.A.No.194 of 2003 in O.S.No.3 of 1998 to appoint the Advocate Commissioner, Advocate Shri Dhanapalan who was first appointed in I.A. 13 of 1999 to revisit and measure the suit property along with the assistance of Taluk Surveyor and note down the physical features and to file his report with plan. In the said O.S.No.3 of 1998, the respondents Panchayat also filed another I.A.No.728 of 2003 to scrap the Commissioner's report filed by Ms.Amudha Nagarajan pursuant to the order in I.A.No.313 of 1999.
6. In O.S.No.4 of 1998 the respondents Panchayats filed I.A.No.729 of 2003 to scrap the Commissioner's report pursuant to the order in I.A.No.315 of 1999. In the said O.S.No.4 of 1998 the respondents Panchayats filed another I.A.No.196 of 2003 to appoint the Advocate Commissioner Shri Dhanapalan as in the case of I.A.No.12 of 1999 to revisit the suit property along with the assistance of Taluk Surveyor and to note down the physical features and to file his report and plan property.
7. In O.S.No.8 of 1998 the respondents Panchayats have filed the I.A.No.730 of 2003 to scrap the Commissioner's report of Ms.Amudha Nagarajan filed pursuant to the order in I.A.No.319 of 1999. In O.S.No.8 of 1998 the respondents Panchayats filed another I.A.No.195 of 2003 to appoint the Advocate Commissioner Mr.Dhanapalan as in the case of I.A.No.10 of 1999 to revisit the suit property along with the assistance of Taluk Surveyor and to note down the physical features of the suit property and to file his report and plan.
8. The above said six I.As filed by the respondents Panchayat were contested by the revision petitioners/plaintiffs. By order dated 25.01.2007, the above six I.As filed by the respondents were allowed. In effect the reports of the Advocate commissioner Mrs.Amutha Nagarajan in each of the case were scrapped and Mr.Dhanabalan, Advocate was appointed as the Advocate Commissioner to revisit and measure the suit property with the assistance of the Taluk Surveyor. It appears that Mr.Dhanapalan, Advocate Commissioner visited the suit property along with the Assistance of Taluk Surveyor on 06.09.1998 and filed reports dated 20.11.2008 on 21.11.2008. Thereafter, the revision petitioners/plaintiffs filed the above six civil revision petitions challenging the order dated 25.01.2007 passed by the District Munsif Cum Judicial Magistrate Court, Palladam in each of the I.As in all the three respective suits.
9. The main grievance of the learned counsel for the petitioners in the civil revision petitions is that the second Advocate Commissioner Mrs.Amudha Nagarajan was appointed pursuant to the orders in I.A.No.313 of 1999 in O.S.No.3 of 1998, I.A.No.315 of 1999 in O.S.No.4 of 1998 and I.A.No.319 of 1999 in O.S.No.8 of 1998 to measure the property with the assistance of Taluk Surveyor. The said I.As. were filed by the Panchayat. The respondents Panchayats did not specifically file any objection to the Commissioners report. Their grievance is only that the Commissioner viz.,Mr.Dhanabalan who visited the site first should have been appointed to re inspecte the property and measure the same with the assistance of the Taluk Surveyor. Whereas the Court below has appointed an another Advocate Commissioner Mrs.Amudha Nagarajan to inspect the property with the assistance of Taluk Surveyor. This according to the respondents will cause prejudice.
10. The further contention of the learned counsel for the petitioners/plaintiffs is that the first Advocate Commissioner's report based on the order in I.A.No.13 of 1999 in O.S.No.3 of 1998, in I.A.No.12 of 1999 in O.S.No.4 of 1998 and in I.A.No.10 of 1999 in O.S.No.8 of 1998 is to note down the physical features of the suit property and the second Advocate Commissioner's report is to measure the suit property with the help of taluk surveyor. Both the report do not conflict with each other. There is no need for another Commissioner to inspect and report once again. The Court below erred in scrapping the Advocate Commissioner's report filed by Mrs.Amudha Nagarajan only on the ground that the Advocate Commissioner Mr.Dhanabalan alone should reinspect the suit property along with the assistance of Taluk Surveyor.
11. The respondents Panchayats represented by the learned counsel Mr.V.R.Thangavel submits that the first Advocate Commissioner Mr.Dhanapalan has inspected the suit property and he alone should have been appointed as Advocate Commissioner to revisit and measure the suit property with the assistance of taluk surveyor. The Court below when passing the order scrapping the report of the second Advocate Commissioner Mrs.Amudha Nagarajan, came to the conclusion that another Advocate Commissioner cannot be appointed without scrapping the earlier report. Hence, the order is justified.
12. He further contended that in order to avoid multiplicity of litigation and technical complication as submitted by the respondents Panchayats, the second commissioner's report filed by Mrs.Amudha Nagarajan was scrapped and the earlier Advocate Commissioner Mr.Dhanapalan was once again appointed to measure the suit property with the help of taluk surveyor. Therefore, the order passed by the Court below is justified, as the first Advocate Commissioner alone can give the clear picture with regard to the suit property. In this case, he has already visited the property at the instance of the petitioners/plaintiffs on the first instance. He supported the impugned order.
13. The decision taken by the Court below to scrap the report of the second Advocate Commissioner Mrs.Amudha Nagarajan filed pursuant to order in I.A.No.313 of 1999 in O.S.No.3 of 1998, in I.A.No.315 of 1999 in O.S.No.4 of 1998 and in I.A.No.319 of 1999 in O.S.No.8 of 1998 cannot be sustained for the following reasons:- "(i) The first Advocate Commissioner was appointed at the instance of the petitioners/plaintiffs to note down the physical features of the suit property. He filed a report. There is no objection to it and there is no dispute. The respondents/defendants filed subsequent I.As. to appoint an Advocate Commissioner to measure the suit property with the help of taluk surveyor, which was ordered by the Court below. The property was measured and a report has been filed. (ii) The above said report has not been factually disputed and there is no allegation that the measurement done by the taluk surveyor is improper and illegal. The procedure adopted by the Advocate Commissioner, while measuring the property with the help of the taluk surveyor is not in dispute. Both the plaintiffs and the defendants have filed the applications for appointment of an Advocate Commissioner for different purposes viz., one is to note down the physical features of the suit property, another one is to measure the suit property with the help of taluk surveyor. There is therefore no conflict in the two reports."
14. The dispute is with regard to the alleged encroachment of the property by the plaintiffs into the road margin. The second Commissioner's report, which is factually not in dispute was filed after measuring the property with the help of taluk surveyor and the same is also will help in the effective adjudication of the suit. When the contents of the report of the Advocate Commissioner based on the measurement done with the help of taluk surveyor is not seriously disputed except for technical reasons, and therefore the second inspection report of different Advocate Commissioner, cannot be the reason for the Court below to scrap the said report. In fact the property was measured by the second Advocate Commissioner with the help of taluk surveyor at the instance of the respondent/defendant and that report may be more relevant for adjudication of the case.
15. The reason given by the Court below to scrap the second Advocate Commissioner's report is on the ground that the respondents Panchayat feel that there will be a technical flaw on their part, if they do not object to the report given by the second Advocate Commissioner, The applications for appointment of Advocate Commissioner have been filed by both sides for different purposes. One is to note down the physical features of the suit property, another one is to measure the suit property with the assistance of taluk surveyor. The report of the first Advocate Commissioner and that of the second Advocate Commissioner will be appropriate and relevant for effective adjudication of the suit considering the nature of the relief sought for. It does not appear to conflict or contradict each other. On the face of the prayer. It is for the Court below to consider the content of the report on merits.
16. The Court below was therefore not justified in scrapping the second commissioner's report in its orders in I.A.No.728 of 2003 in O.S.No.3 of 1998 dated 25.01.2007, in I.A.No.729 of 2003 in O.S.No.4 of 1998 dated 25.01.2007 and in I.A.No.730 of 2003 in O.S.No.8 of 1998. There was no necessity for scrapping the report of Ms.Amudha Nagarajan, Advocate Commissioner, who measured the property with the help of taluk surveyor at the instance of the respondents/defendants who filed the I.A's for appointment of Advocate Commissioner.
17. The reappointment of Mr.Dhanapalan, as the Advocate Commissioner to measure the suit property with the help of taluk surveyor once again in I.A.No.194 of 2003 in O.S.No.3 of 2008, I.A.No.196 of 2003 in O.S.No.4 of 1998 and in I.A.No.195 of 2003 in O.S.No.8 of 1998 is unwarranted. The taluk surveyor does not have to survey the property once again having done so pursuant to the order of the very same court at the instance of the respondents/defendants. A report has already been filed by Mrs.Amudha Nagarajan, Advocate Commissioner based on the Court order. There cannot be two reports of the taluk surveyor. That will confuse the Court and the suit proceedings . There is no justification for scrapping the report of Advocate Commissioner Mrs.Amudha Nagarajan and the Court below has not given adequate or acceptable reasons for doing so. Hence the order under challenge is liable to be interfered with.
18. The orders of reappointing of Advocate Commissioner Mr.Dhanabalan in I.A.No.194 of 2003 in O.S.No.3 of 1998, in I.A.No.196 of 2003 in O.S.No.4 of 1998 and in I.A.No.195 of 2003 in O.S.No.8 of 1998 therefore are set aside. The orders of the Court below scrapping the second Advocate Commissioner Mrs.Amudha Nagarajan's report are also set aside.
19. The Court below is directed to adjudicate the case taking into consideration the First Commissioner's report filed in I.A.No. 10 of 1999, I.A.No.12 of 1999 and I.A.No.13 of 2009 and the second commissioner report filed in I.A.No.313 of 1999, I.A.No.315 of 1999 and I.A.No.319 of 1999. Both the reports shall be taken for the purpose of disposal of the suit on merits.
20. The civil revision petitions are ordered accordingly. Since the suits are of the year 1998 and more than 10 years have lapsed, the trial Court is directed to dispose of the suits as expeditiously as possible on or before 30.11.2009. Both the parties are agreed for early disposal of the suits. Consequently, connected M.Ps. are also closed. No costs.
