NIRMALA Vs. NANDAKUMAR

JUDGEMENT

(1.) This Revision is by the defendants in a suit for declaration of title and possession and injunction filed by the plaintiff. The claim of title and possession by the plaintiff is denied by the defendants. The plaintiff took out a commission to locate the plaint schedule property shown as plaint A to D schedules. The defence was that the land owner of the property had only 40 cents and after having executed various sale deeds he had exhausted the said 40 cents by the year 1991 and thereafter nothing was left to be sold to the plaintiff in the year 1994 as claimed by the plaintiff. In the context of that plea defendants filed an application for the issue of a commission to identify the entire 40 cents with reference to the original purchase deed by the land owner and also to locate the various portions sold by him in the chronological order so as to enable the Court to come to a conclusion on the title and possession claimed by the plaintiff in the present suit. This application was opposed by the plaintiff essentially on the plea that the defendant sought to have asked for this when the Court issued a commission at the instance of the plaintiff and that such a commission was unnecessary since the plaint schedule properties have been identified by the Commissioner. The Court below dismissed the application filed by the defendants accepting this plea of the plaintiff and also observing that the allowing of the prayer made by the defendants would mean the measurement of properties of strangers to the suit and hence the application cannot be allowed. This is challenged in this Revision.

(2.) Learned counsel for the respondent relying on a recent decision of this Court contended that the Revision was not maintainable. According to me when the dismissal of a commission application will lead to failure of justice like in a case where the dispute is regarding identity and an application for commission for identifying the property is rejected by the Court, it could be considered to be a case decided or even a case coming under the proviso to S.115 of the Code of Civil Procedure as an order that would cause prejudice to the parties. But assuming for the present that the decision relied on by learned counsel for the respondent lays down the correct law, I have no doubt that I have jurisdiction under Art.227 of the Constitution to consider in the interest of justice whether the Court below was right in refusing to have the properties properly identified so as to render a decision satisfactory to its conscience. I therefore propose to exercise my jurisdiction under Art.227 of the Constitution of India.

(3.) Considering the nature of the contentions raised I find that the identification of the property purchased originally by the land owner and the identification of the parcels sold by him in the chronological orders is necessary for a proper adjudication of the matters in controversy. The defendant while filing I. A. 4192 of 1998 has essentially sought the issuance of a commission for that purpose. What is sought for in I. A. 4182 of 1998 is the identification of the property with reference to the various title deeds referred to in that application. It is pointed out by counsel for the defendants that those documents have also been produced. I am therefore satisfied that this is a fit case where the application filed by the defendants ought to be allowed. This is necessary for enabling the Court to render a decision as accurate as possible which is the ideal that must always be achieved by any judicial authority called upon to decide a dispute. In the view I think that the order of the Court below requires to be set aside. I therefore set aside the order of the Court below and allow I.A. 4182 of 1998. But since a Commissioner had already visited the property earlier, I direct the Court below to issue the commission to the same Commissioner so as to enable that Commissioner to comply with the prayers made in I. A. 4182 of 1998.