Chandra vs N. Reddappa Reddy, Thulasi and K. Sargunam

S.R. Singharavelu, J.—First Defendant is the revision petitioner. Aggrieved over the order dated 12.08.2005 in I.A. 14146 of 2000 in O.S.

No. 3736 of 2000 on the file of V Assistant Judge, City Civil Court, Chennai, in appointing an Advocate Commissioner to note down the physical

features of the suit property, namely, plot No. 21 and 22, Chockalingam Nagar Colony, Gopalapuram, Chennai-86, the first defendant has filed

this revision petition.

Admittedly, there was an earlier suit, which went up to Supreme Court and finality reached in declaring the right of the defendants in the well

situated on the north-western side of the suit property with a right over the area circumscribing the well up to a width of 25 feet.

The first respondent/plaintiff has preferred the present suit, the effect of which as apprehended by defendants, may to some extent undo their

rights in the well found in the earlier decree.

The present plaint is for (i) permanent injunction restraining the defendants from interfering with the plaintiff''s property in putting up gate,

compound wall, development of the plots, usage of plots in the suit property, (ii) for declaration that clause 3 of Partition Deed dated 29.10.1906

relating to drawing of water from the well in plot No. 22 by using the irrigation method of Yetram, etc., to do cultivation is not valid and cannot be

enforced as it is hereby prohibited in the City of Chennai in view of the prohibition of cultivation in the City by Legislation ; and (iii) to struck off as

per order dated 11.07.2005 passed in I.A. No. 13508 of 2004.

Learned counsel for the first respondent / plaintiff has submitted that under the guise of exercising the right of defendants in the suit well shown in

the earlier decree, an attempt is made to enter into plot No. 21 and 22 belonging to the plaintiff, where the remaining parties have no interest and

that is why the suit was filed.

Although an attempt was made that by virtue of a particular enactment no irrigation could be made by the defendants from the suit well, despite

the existence of earlier decree, no such legislation was shown or quoted before me.

However, we are now only at the point as to whether there is a need for any appointment of Commissioner to note down the physical features

of the suit property namely, plot No. 21 and 22. The first respondent/plaintiff sought for such appointment only to show his case that there was an

attempt made by the revision petitioner/first defendant to encroach upon the first respondent/plaintiff''s plots No. 21 and 22, over which the

revision petitioner has no right.

That could be easily done by virtue of evidence. The report of the Commissioner cannot support such contention; because noting down the

physical features by Commissioner may not be ipso facto taken that such features were made after encroachment by the revision petitioner/first

defendant. For that purpose, independent evidence is required and that evidence independent of the report of the Commissioner can establish the

case of the first respondent/ plaintiff. In that way, the report of the Commissioner may not be serving the purpose of the first respondent/ plaintiff.

The next question that may arise is as to whether any prejudice is caused to the revision petitioner upon appointment of Commissioner. In this

connection, learned Senior Counsel for the revision petitioner/first defendant relied on the decision S. Anthonidoss and Another Vs. Sabesthiyan

and Another, , wherein it was held that the question of appointment of Commissioner does not depend upon merely whether any prejudice will be

caused to the other side or not. It was further held that there should be sufficient basis justification as also an effective need and an appointment of

Commissioner cannot be sought for or obtained as a matter of course and that too to achieve an ulterior object or motive.

Likewise, in an unreported judgment of this Court in C.R.P. No. 185 of 2004, it was observed that Commissioner cannot be allowed to gather

evidence and while appointing a Commissioner, the number of earlier litigation may have to be necessarily taken note of.

In this case also, there were earlier litigation, which went up to the Apex Court declaring the rights of the parties and ultimately the right of the

defendants in the suit well adjoining plot No. 21 and 22 was declared with a right of pathway unconnected with plot No. 21 and 22. In such an

event, appointment of Commissioner to note down the physical features is not required inasmuch as independent of the same the first

respondent/plaintiff would be able to establish the averments made in the plaint about the encroachment made by the defendants and their attempt

as a case may be. Simply because it causes no prejudice to the defendants, such order of appointment cannot be sustained especially, in view of

the fact that there are prior litigation between the parties and unnecessary further litigation may also crop up. Hence, the order passed by the court

below is liable to be set aside.

For the reasons mentioned above, the revision petition is allowed, setting aside the order passed by the court below dated 12.08.2005 in I.A.

No. 14146 of 2000 in O.S.3736 of 2000. No costs. Consequently, connected C.M.Ps.are closed.