K. Ramachandran Nair vs N.B. Sadanan Nair

Honourable Mr. Justice G. Rajasuria

A summation and summarisation of the facts giving rise to the filing of this Civil Revision Petitions, which are absolutely necessary and germane

for the disposal of these Civil Revision Petitions would run thus:

Revision Petitioner is the defendant in the suit. The plaintiff, who is the respondent herein, filed a suit for injunction with the following prayer:

A.A. decree be passed restraining the defendant, and his men or agents from disturbing the plaintiff''s possession and enjoyment, and trespassing

into the plaint schedule property in any manner.

B. Plaintiff be awarded the costs of this Suit from the defendant.

C. Such other reliefs which the Court deems fit and proper in the nature of the suit also be granted.

The matter was contested and the trial was over. At the fag end of the argument stage, the defendant filed two I.As., one for getting the matter

reopened and another for getting the Commissioner appointed for carrying out the following mission:

To note and report the total number of trees standing in the petition schedule items, with detailed particulars, i.e., its age, number of trees, kind

of trees etc.

To note and report the physical features of the plaint schedule item.

Such other points as required by the petitioner at the spot.

A counter affidavit was filed by the plaintiff, whereby the Court, after hearing both the sides, dismissed both the applications.

Being aggrieved by and dissatisfied with the same, the present Civil Revision Petitions have been filed under Article 227 of the Constitution of

India, on various grounds.

The parties are referred to herein according to their litigative status and rank before the Lower Court.

Learned counsel for the defendant would pyramid his arguments by setting out various details which could pithily and precisely be set out thus:

It transpires that during trial, the plaintiff came forward with untenable facts concerning the physical features on ground. The plaintiff suppressed the

material facts. If the Commissioner is appointed, certainly he would be able to note down the physical features including the number of trees and

saplings existing on the ground in the suit property and that would enable the Court to give its finding on a stronger footing. But the Lower Court

dismissed the application on no good grounds.

Per contra, the learned counsel for the plaintiff, in a bid to torpedo and pulverise the arguments advanced on the side of the defendant, would

put forth and set forth his arguments, which could tersely and briefly be set out thus:

The Lower Court correctly and convincingly pointed out that at the fag end of the Court proceedings, the said application was filed; that nothing

prevented the defendant from filing such application even before the commencement of trial; and such applications are only meant for protracting

the proceedings; the defendant wanted to try to fish out evidence after understanding and realising that the evidence adduced by him was sketchy

and patchy. As such, for the purpose of filling up of the lacunae, he filed two applications, but the attempt made by the defendant was correctly

thwarted by the Court warranting no interference.

The point for consideration is as to whether the appointment of Commissioner at the fag end of the proceedings to note down the physical

features of the suit property is absolutely necessary or not.

Both the sides would narrate the facts to the effect that one Math happened to be the owner of the suit property. The plaintiff would contend

that he is the tenant under the said Math whereas the defendant would submit that the defendant''s predecessors-in-title was a tenant under the

Math and following him, he happens to be the tenant under the same Math. The learned counsel for the defendant would submit that during

examination of the plaintiff''s side, it was stated as though there are about 400 rubber trees, whereas in reality there are more than 506 rubber

trees. As such, the learned counsel for the defendant would submit that if the Commissioner visits the suit property and note down the physical

features and counts the number of trees and also ascertain the age of the trees, then, everything would be clear. Whereas, the learned counsel for

the plaintiff would submit that if the Commissioner is appointed to find out the age of the trees, then, that would turn out to be a wild goose chose

and it would be a never ending process.

I see considerable force in the arguments of the learned counsel for the plaintiff that if a Commissioner is mandated to find out the age of the

trees, then that would be certainly a cumbersome process and time consuming one which would be beyond the scope of the suit. The main issue is

to find out as to who was in established possession of the suit property as on the date of filing of the suit and for that purpose, noting down the

physical features would be of much importance, so that a clear picture existing on ground can be compared with the earlier depositions of the

witnesses, so as to test the veracity of the evidence adduced. Hence, keeping this in mind, I am of the view that both the applications could be

allowed subject to the following conditions:-

The defendant shall pay a cost of Rs. 2,000/- (Rupees Two Thousand Only) to the plaintiff within a week from this date;

Once the Commissioner is appointed by the Lower Court, he shall visit the suit property and note down the physical features including the

number of the saplings and the trees and he can also take photographs of the entire suit property including the trees at the cost of the defendant and

submit the same to the Court.

The Commissioner need not ascertain the age of the trees. 4. Within a week from the date of issuance of the Commissioner''s warrant, the

Commissioner should submit his report. Thereafter, within a week, the judgment has to be delivered by the Lower Court.

Both the Civil Revision Petitions are disposed of, accordingly.

Consequently, the connected miscellaneous petitions are closed. No costs.