Subramanian vs Sermathangam Sermathangam Vs Subramanian

G. Rajasuria, J.—C.R.P. (PD)(MD) No. 2339 of 2011 has been filed to get set aside the fair and decreetal order dated 28.10.2011

passed in I.A. No. 330 of 2011 in O.S. No. 886 of 2007 by the learned Additional District Munsif, Tenkasi. C.R.P. (PD)(MD) No. 2339 of

2011 has been filed to get set aside the fair and decreetal order dated 17.03.2011 passed in I.A. No. 31 of 2011 in O.S. No. 886 of 2007 by the

learned Additional District Munsif, Tenkasi.

Heard both sides.

The epitome and the long and short of the germane facts absolutely necessary for the disposal of both the Civil Revision Petitions would run

thus:

(i) The respondent/plaintiff filed the suit in O.S. No. 886 of 2007, seeking the following reliefs:

(ii) During the pendency of the suit, an application was filed for getting appointment of an Advocate Commissioner and accordingly, an Advocate

Commissioner was appointed who visited the suit property and submitted his report.

(iii) During the pendency of the trial, the application in I.A. No. 330 of 2011 was filed under Order 16 Rule 1 and Section 151 of the CPC to

summon the Deputy Superintendent of Police concerned who conducted the enquiry in regard to the dispute between the parties concerned over

the pathway; and also the I.A. No. 31 of 2011 to re-issue the warrant to the Advocate Commissioner to inspect the suit property. After hearing

both sides, the lower Court dismissed both the applications.

Being aggrieved by and dissatisfied with the same, these two Civil Revision Petitions have been focussed on various grounds.

The learned Counsel for the revision petitioner/first defendant would put forth and set forth his arguments thus:

(i) The Deputy Superintendent of Police actually recorded the oral statement of the parties to the dispute and the relevant records have already

been produced before the Court through a messenger and it is available. However, certain documents and statements available in those records

should be marked through him and with that object alone, the revision petitioner/first defendant sought for summoning the Deputy Superintendent

of Police, but the lower Court unjustifiably dismissed the said application warranting interference in revision.

(ii) The Advocate Commissioner, no doubt, submitted his report with sketch, but he did not mention about the availability of the other pathway or

pathways which could be used as a means of access to the plaintiff''s house. As such, re-issuance of warrant is required for noting down the

physical features to that effect. But, the lower Court unwittingly dismissed that application warranting interference in revision.

Per contra, in a bid to slap down and pulverise the arguments on the side of the revision petitioner/first defendant, the learned Counsel for the

respondent/plaintiff would pyramid his argument, the gist and kernel of it, would run thus:

The lower Court correctly dismissed both the applications. The Deputy Superintendent of Police, being the higher official in the Police Department,

might have conducted the enquiry, but that would have no bearing on the civil proceedings in the civil Court. The Advocate Commissioner already

submitted his report with sketch showing as to how the revision petitioner could have access from the tar road to his house after passing through

the pathway specified by him in dotted lines and hence, re-issuance of warrant to the Advocate Commissioner is not warranted. Over and above

that, the respondent/ plaintiff also contended that the dotted line pathway is also situated in the poramboke land over which the revision

petitioner/first defendant is having no right.

The points for consideration are:

(i) Whether the lower Court was justified in dismissing both the application seeking summons to the Deputy Superintendent of Police so as to mark

the relevant documents which were already produced from his Office?

(ii) Whether the re-issuance of the warrant to the Advocate Commissioner to note down as to what are all the other ways and means of access to

the plaintiff''s house, is necessary? Point No. (i)

At the outset itself, I would like to highlight and spotlight the fact that the Deputy Superintendent of Police might have conducted the enquiry

within his powers, but as the same would have no weightage in civil proceedings before the civil Court. The Civil Court is expected to conduct the

trial and arrive at a conclusion independently. In such a case, his deposition before the Court would be a surplusage and is totally unwarranted.

However, I would like to recall Sections 145 and 157 of the Indian Evidence Act, which are extracted hereunder:

Section 145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in

writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended

to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the

purpose of contradicting him.

(emphasis supplied.)

Section 157. Former statements of witness may be proved to corroborate later testimony as to same fact.-In order to corroborate the testimony of

a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any

authority legally competent to investigate the fact, may be proved.

(emphasis added.)

If at all the records produced from the Office of the Deputy Superintendent of Police would contain any previous recorded statements of the

parties to the dispute, then certainly that could be used for corroboration or for contradiction and nothing more. As such, keeping that in mind, the

parties can make use of the available records which were produced from the Office of the Deputy Superintendent of Police. Accordingly, Point

No. (i) is answered.

Point No. (ii)

Easement of necessity is such that it is writ large in the plea itself. The party invoking it himself, has to prove by adducing evidence that he has

no other way to have access to his property except the one in issue.

It is also the bounden duty of the plaintiff herein to establish and demonstrate that he has no other means of access to his property other than

the said dotted line pathway. However, the report of the Advocate Commissioner is silent as silence could be in that aspect and the noting down of

the physical features around the suit property of the plaintiff, is absolutely necessary and for that purpose, re-issuance of the Advocate

Commissioner''s warrant is a must.

Hence, the lower Court shall re-issue the warrant to the Advocate Commissioner with a mandate to visit the property concerned with the help

of the Surveyor and find out with reference to survey records whether apart from the dotted line pathway, any other pathway or place which could

be used for ingress and egress to his house from the outside world. I would also mandate the lower Court to dispose of the matter within a period

of four months from the date of receipt of a copy of this order. Point No. (ii) is answered accordingly. On balance, both the Civil Revision Petitions

are disposed of as above. Consequently, the connected Miscellaneous Petitions are closed. No costs.