K SURESH NEPOLEON Vs. D MOHAN

JUDGEMENT

(1.) This civil revision petition filed at the instance of the petitioner / defendant is directed against the fair and decreetal orders, dated 29.09.2016, passed in I.A.No.580 of 2016 in I.A.No.1012 of 2012 in O.S.No.442 of 2010, on the file of the Additional District Munsif Court, Srivilliputtur.

(2.) The suit in O.S.No.442 of 2010 has been laid by the respondents / plaintiffs against the petitioner / defendant for declaration, possession and mandatory injunction. It is found that the said suit is being resisted by the petitioner / defendant by filing a written statement. While so, the respondents / plaintiffs preferred an application in I.A.No.1012 of 2012, under Order XXVI Rules 9 and 10 of the Code of Civil Procedure, seeking for the appointment of a Commission to make inspection of the suit property with the help of a Surveyor so as to point out / identify the encroachments made in the suit property by the petitioner / defendant and the compound wall put up by the petitioner / defendant by way of such encroachments by submitting a report and plan. It is found that the said application was not contested by the petitioner / defendant and he having made an endorsement as no counter, it is found that the Court below was pleased to appoint an Advocate Commissioner directing him to inspect the suit property with the help of the Surveyor and file his report and plan. Pursuant to the same, the Commissioner, who had been so appointed, is found to have inspected the suit property and filed his report and plan. It is, further, found that the respondents / plaintiffs have put forth certain objections to the report and plan of the Advocate Commissioner.

(3.) As seen from the provisions of Order XXVI Rule 9 C.P.C., it is found that the Commissioner should make inspection of the suit property only touching upon the features of the suit property as may be directed by the Court in the warrant issued to him. Now, according to the respondents / plaintiffs, inasmuch as the Commissioner had not noted the encroachments made by the petitioner / defendant in the suit property in his plan and also not clearly demarcated the first and second schedules of the suit property in his plan and further, as the report of the Commissioner and the plan are found to be inconsistent with each other with reference to the demarcation of the above schedule properties and further, according to the respondents / plaintiffs, the Commissioner though had been requested by them to measure the property of the petitioner / defendant, but the same had been refused by the Commissioner and so pointing out the above said objections put forth by them, it is found that the respondents / plaintiffs preferred another application in I.A.No.580 of 2016 seeking for the scrapping of the report filed by the Advocate Commissioner pursuant to the orders passed by the Court below in I.A.No.1012 of 2012 and further seeking for the appointment of a new Commissioner to inspect the suit property with the help of the Surveyor and in particular, to measure the suit property with the help of the title deeds of the petitioner / defendant and file his report and plan for the proper adjudication of the issues involved in the matter. The said application was seriously resisted by the petitioner / defendant putting forth that there is no specific direction sought for by the respondents / plaintiffs to measure the suit property with the assistance of the title deeds of the petitioner / defendant in I.A.No.1012 of 2012 and in continuation thereof, as there was no direction of the Court also to perform the said task in the warrant issued to the Commissioner, the respondents / plaintiffs cannot find fault with the report of the Commissioner as if he had failed to measure the suit property vis-a- vis the title deeds of the petitioner / defendant and further, according to the petitioner / defendant, no such instruction is given by the respondents / plaintiffs to the Commissioner and further according to him, even if the Commissioner had refused to comply with the request of the respondents / plaintiffs, nothing prevented them from pointing out the same to the Court and getting such other or further direction from the Court to the Commissioner to complete the said task as requested by them. Further, as regards the plea put forth by the respondents / plaintiffs that the Commissioner has not noted the encroachments made by the petitioner / defendant in the suit property, it is stated that it has been all along the specific case of the petitioner / defendant that no such encroachment had been made by him as pleaded by the respondents / plaintiffs and accordingly, the Commissioner has also not referred to about the encroachments as such said to have been made by the petitioner / defendant in the report and plan and further, it is stated that the Commissioner is not a competent authority to determine the question of encroachment said to have been made by the petitioner / defendant in the suit property and it is only the Court, which is the competent authority, to settle the issue of encroachment on the basis of the materials placed by the respective parties and thus, it is stated that as there was no direction from the Court to the Commissioner to measure the suit property vis-a-vis the title deeds of the petitioner / defendant and as the case of the respondents / plaintiffs that their request to measure the suit property with the help of the title deeds of the petitioner / defendant is also not made out or justified and further as the Commissioner had only filed his report and plan of the physical features of the suit property, as observed and noted by him during his inspection, according to the petitioner / defendant, there is no need for scrapping of the report filed by the Advocate Commissioner and also no need for the appointment of the new Advocate Commissioner to inspect the suit property again and measure the same with the help of the title deeds of the petitioner / defendant as prayed for by the respondents / plaintiffs. It is further contended by the petitioner / defendant that if really the respondents / plaintiffs are aggrieved by the report and plan of the Advocate Commissioner, they cannot be rest contended by merely filing objection to the same and it is for them to establish that the Commissioner has not acted in accordance with the directions issued by the Court and for that purpose, the respondents / plaintiffs should have endeavoured to examine the Commissioner with the permission of the Court as regards the report and plan filed by him and only thereafter, if the respondents / plaintiffs are able to establish to the satisfaction of the Court that the Commissioner has not performed his task properly and correctly, only then the Court would be empowered as such to pass further orders as to the further inspection of the suit property by the same Commissioner or by another Commissioner and the scrapping of the report of the Commissioner etc., and this procedure having not been followed by the respondents / plaintiffs, according to the petitioner / defendant, the application laid by the respondents / plaintiffs in I.A.No.580 of 2016 merits rejection.