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Judgment
S.S. Subramani, J.—Defendants 2, 3, 5 and 6 in O.S. No. 12199 of 1989, on the file of First Assistant City Civil Judge''s Court, Madras,
are the revision petitioners. Petitioners are aggrieved by the order in I.A. No. 15827 of 1999 whereby a Commission was issued to measure the
property.
Material facts could be summarised thus:-
First respondent herein claims that he is the holder of an equitable assignment in respect of rights and interest of late M. Rajaram in respect of the
lands comprised in T.S. Nos. 16 and 21, Block Nos. 38 and 39, Paimash Nos. 967 to 972 in No. 109, Puliyur Strotriem village. The entire
village, according to first respondent/plaintiff, was an inam and, and one Janakiram Pillai was the strotriemdhar. In a dispute between the family
members, Janakiram Pillai was appointed as Receiver by this Court, and as per Extract from Land Register, it could be seen that Janakiram Pillai
was the erstwhile landowner. Till the Government took over the land, Janakiram was shown as the owner in all the records. It is further said that
one Akbar Basha, father of first defendant, purchased some lands from third parties who had no manner of right or interest therein and
consequently the sale in favour of first defendant was also invalid. In 1938, father of first defendant instituted a suit as O.S. No. 1 of 1938 in the
Court of Deputy Collector of Saidapet under Sec. 55 of the Estate Lands Act for issue of Patta. The case went against him. On 15.11.1947,
Janakiram Pillai issued Patta to P. Kalyanasundaram Pathar in respect of lands comprised in Paimash Nos. 967 to 972 for valid consideration.
From that date onwards, Kalyanasundaram Pathar was in exclusive possession of the properties. He died issueless and he had executed a Will
whereby his adopted son one Rajaram acquired right over the property. It is the right of Rajaram that plaintiff claims as holder of equitable
assignment.
Even though the document in favour of the father of first defendant is invalid, it seems that the first defendant executed a sale deed in favour of
defendants 2 to 5 and others. The Special Commissioner and Commissioner for Land Administration to the Government of Tamil Nadu was
approached for the grant of Ryotwari Patta, and he directed the filing of a regular Revision Petition to the Assistant Settlement Officer,
Tiruvannamalai. The plaintiff filed a Writ Petition and obtained necessary direction. It is alleged that the defendants 2 to 7, in the meanwhile have
put up a huge Kalyana Mandapam in the land over which they have no right, and over which the plaintiff alone has right. It is said that the Kalyana
Mandapam is to be inaugurated on 14.12.1989, and if the same takes place, plaintiff''s right over the land will be seriously affected. The suit was,
therefore, laid for the following reliefs:-
....for a declaration that he alone is entitled to the ryotwari patta in respect of the plaint schedule lands and for consequential injunction restraining
the defendants 2 to 7 from any entitlement thereto and from proceeding with any construction and the inauguration of any Kalyana Mandapam on
the lands set out in the schedule below wherein they have no right and for which they have no ryotwari patta;
and
for costs of the suit.
In the written statement filed by defendants, they have denied the rights of plaintiff
The parties went on trial, and the entire evidence was closed. The matter was also fully argued by petitioners'' counsel. On the request of
learned counsel for 1st respondent/plaintiff, the matter was adjourned. At that time, I.A. 15827 of 1999 was filed for the following relief:-
... to appoint an Advocate-Commissioner to note down the physical feature of the 6th and 7th respondents possession of the entire suit schedule
property comprised in T.S. Nos. 16 and 21 Block Nos. 38 and 39 Paimash Nos. 967 to 972 in No. 109, Puliyur Strotriem Village, measuring an
extent of 37-1/2 grounds in T.S. No. 21(2) including 21/6 Block No. 39, at Door No. 29-A, Viswanathapuram Main Road, ""Saragam -
Kodambakkam, Chennai - 600 024 pending disposal of the above suit, and pass such further or other orders as this Hon''ble Court may deem fit
and proper, and thus render justice.
In the affidavit filed in support of the application, it is said that in the deposition of D.W.1., one Krishna Rao, Manager of the 7th defendant
appeared before Court and deposed that defendants 6 and 7 are in possession and enjoyment of more than 22 grounds. But in Ex.B-7, the right is
confined only to 14 grounds and 45 cents. In view of the contradiction in the deposition and document, an Advocate-Commissioner is to be
appointed. He has further averred that plaintiff is having lands comprised in T.S. Nos. 16 and 21, Block Nos. 38 and 39 Paimash Nos. 967 to
972 in No. 109, Puliyur Strotriem village measuring an extent of 9 conies and 45 cents, out of which the defendants 6 and 7 are in occupation of
plaintiffs lands to an extent of 37-1/2 grounds. They wanted an Advocate-Commissioner to note down the physical features of the property in the
occupation of defendants 6 and 7 with the assistance of a Surveyor.
A counter-statement was filed on behalf of sixth defendant contending that there is no necessity for issuing a Commission, especially after
arguments were heard. It was also contended that there is no necessity to appoint an Advocate-Commissioner to measure the property with the
assistance of any Surveyor, nor is there any question of noting down the physical features. The suit is not one for recovery of property, nor its
identity is questioned. Therefore, there is no necessity for the issue of a Commission. Even though they raised objection, the lower Court held that
to resolve the dispute between the parties, a Commissioner is to be deputed. The same is challenged in this Revision.
Heard learned counsel on both sides.
After hearing learned counsel on both sides, I do not think that the lower Court was justified in issuing a Commission. I have already extracted
the reliefs sought for in the plaint. It is only for declaration of title and consequential injunction. It is admitted by plaintiff in paragraph 12 that
defendants 2 to 7 have put up a huge Kalyana Mandapam in the land in which plaintiff has no right. In spite of this statement, plaintiff did not seek
for recovery of any property. The main relief is only to declare that he alone is entitled to get a ryotwari patta, and the injunction is only
consequential to such a declaration. In the earlier portion of the plaint also, plaintiff has stated that the suit has been filed to protect his interest to
get a ryotwari Patta.
When the identity of the property is not a matter in issue, and when the suit is also not one filed for recovery of property, I do not think there is
any necessity to issue a Commission, and that too, when the question of issuing ryotwari patta is to be decided on the basis of documentary
evidence produced before Court. Again, the relief prayed for in the application for appointment of Advocate-Commissioner is to note down the
physical features of 6th and 7th defendant''s possession of the entire suit schedule property. When the plaintiff himself has admitted that defendants
6 and 7 are in possession, what is the necessity to note down the physical features of the property in the possession of defendants 6 and 7.
Admittedly, the entire evidence is over, and the matter has also been argued by petitioners'' counsel. In a very recent decision of the Karnataka
High Court reported in B. Subramanyam Vs. Kushal Chand, a learned Judge of that High Court has considered the question as to whether any
amendment could be allowed after the evidence is over. While considering the same, In para 3 of the judgment, it has been held thus:-
There is a doctrine of finality which attaches itself to different stages of legal proceedings and the principle also applies to pleadings. It is true that
the Courts do make certain exceptions provided there is very valid ground but more importantly provided that the application is made in good time
and it does not result in manifest injustice. In the present instance, one needs to take note of the fact that the suit has come upto the stage of
arguments, that it is six years old and the question is as to whether at this late stage an amendment of the written statement should be permitted and
the evidence should be reopened. To my mind, such a procedure cannot be permitted for the reason that among other things, it would result in
manifest injustice to the opposite party. The contention is that the defendant has not repaid the loan and that this is the reason why the plaintiff had
to approach the Court for recovery and it is absolutely essential that the time factor should also be taken into consideration by the legal system.
Even after the pleadings are complete and the evidence has started in exceptional cases, a Court may allow an amendment but if that stage is over
and the evidence has been closed, by permitting reopening of the evidence, to my mind, it would not only be injustice to the opposite party; it
would be manifestly unfair to the system itself because it is due to such situations that litigation gets dilated and goes on interminably........
Learned counsel for petitioners also brought to my notice a judgment reported in S. Anthonidoss and Another Vs. Sabesthiyan and Another,
wherein Raju, J., as His Lordship then was, has held that a Commissioner is not to be appointed for mere asking. Relevant portion of the judgment
reads thus:-
.... The question of appointment of a Commissioner does not depend upon merely whether any prejudice will be caused to the other side or not.
Instead, there should be sufficient basis and 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....
In this case also, the admitted case of plaintiff is that the entire construction of Kalyana Mandapam is over, and it is to be inaugurated. It was at
that time, the suit was filed. In spite of it, plaintiff did not seek for recovery of the property. Probably he did not want to pay Court-fee on the
market value. Learned Counsel also brought to my notice that decision reported in D.S. Reddy rep. by his power agent, D.P.S. Reddy Vs. Dr.
G.V. Reddy, rep. by his Power Agent M.S. Murthy and Another, ). Learned Judge has held in that case that there should be sufficient reason for
appointment of Commissioner, and that the issuance of a Commission must be necessary for the proper disposal of the suit.
Learned counsel for respondents brought to my notice the decision reported in AIR 1975 Goa, Daman & Diu 32 (Veneu Gopal Pari and
others v. Nilconta S. Xete and others), with special emphasis on paragraph 7 of that judgment. In that case, learned Judge of that High Court held
that ''where there is a dispute as regards the identity of the suit property allegedly bearing two different registration numbers, the trial Court should
appoint a Commissioner, preferably a trained surveyor to examine whether the property bearing two different numbers is in fact the same''. As
stated earlier, in the instant case, there is no dispute regarding the identity, and the case of the plaintiff is that he is entitled to get a ryotwari patta.
Defendants are admittedly in possession of the property. Therefore, the said decision has no application to the facts of this case.
Learned counsel for respondents also submitted that an order appointing Commissioner is not a matter decided, and therefore, a revision is not
maintainable. Reliance was also placed on the decision reported in (1993) (2) Current Civil Cases 243 (Kutu Ram and another v. Gheesulal and
others). When a Commissioner has been appointed unnecessarily, and when the lower Court has passed that Order without taking into
consideration the pleadings in the case, and without considering the fact whether such issuance is necessary, it can certainly be said that the Court
has acted illegally. If I am to hold that the Revision is not maintainable, it would amount to admitting an irrelevant piece of evidence. The lower
Court has passed the Order ignoring the relevant provisions of law. In the result, the impugned order is set aside, and I.A. No. 15827 of 1999 in
O.S. No. 12199 of 1989, on the file of First Assistant Judge, City Civil Court at Madras is dismissed. The Civil Revision Petition is allowed. There
will be no order as to costs. The connected C.M.Ps. are closed.