Essakiammal, v. Chellammal

ORDER This Civil Revision Petition has been filed against the fair and decreetal order dated 08.07.2022, passed in I.A.No.2 of 2021 in I.A.No.248 of 2017 in O.S.No.38 of 2017, on the file of the Principal District Munsif, Valliyoor.

2.The petitioners are the defendants in O.S.No.38 of 2017 on the file of Principal District Munsif Court, Valliyoor. The petitioners have filed this Civil Revision Petition against the fair and decreetal order dated 08.07.2022, passed by the learned Principal District Munsif, Valliyoor, in I.A.No.2 of 2021 in I.A.No.248 of 2017 in O.S.No.38 of 2017.

3.By the impugned order, the learned Principal District Munsif, Valliyoor, has dismissed I.A.No.2 of 2021 filed by the petitioners herein under Order XXVI Rule 10-A and Section 151 of C.P.C to scrap the interim report dated 25.02.2017 and final report dated 23.02.2018, given by the Advocate Commissioner appointed pursuant to order in I.A.No.248 of 2017 in O.S.No.38 of 2017 and to appoint a new Advocate Commissioner to measure and give a detailed report with map of the suit schedule property with the help of a Surveyor.

4.The operative portion of the impugned order dated 08.07.2022 in I.A.No.2 of 2021 in I.A.No.248 of 2017 in O.S.No.38 of 2017, passed by the learned Principal District Munsif, Valliyoor, reads as under :- ''6.kDjhu;fs; jug;gpy; ,k;kDtpy; kD 1k; jgrpy; brhj;jhf g[y vz;.934/28 fhl;lg;gl;Ls;sJ vd;Wk;> 2k; jgrpy; brhj;jhf g[yvz;.934/26A fhl;lg;gl;Ls;sJ vd;Wk;> Mizah; ,ilf;fhy mwpf;if kw;Wk; ,Wjp mwpf;ifapy; C.R.P.(MD)No.1928oofo2022 kD 1k; jgrpy; brhj;J vJ mjd; g{[?;jpfs; vd;d? Vd;W bjhptpf;fg;gltpy;iy vd;Wk;> mJnghy; 2k; jgrpy; brhj;J vJ mjd; g{[?;jpfs; vd;d? vd;W mwpf;ifapy; bjhptpf;fg;gltpy;iy vd;Wk;> Mizah; ,ilf;fhy mwpf;ifapy; vjd; mog;gilapy; rh;nt vz;fs;> tpguk;> mjd; chpikahsh; tpguk; bjhptpf;fg;gl;lJ vd;W bjhptpf;fg;gltpy;iy vd;Wk;> ,Wjp mwpf;ifapy; g[y vz;. 924/26B,o934/26C kw;Wk; 934/27 Mfpa brhj;Jf;fs; mstpl bra;ag;gl;ljhf fz;L mwp;f;if jhf;fy; bra;ag;gl;Ls;sJ vd;Wk;> nkw;go g[y vz;fs; Fwpj;J Mizah; kD brhj;J tpguj;jpnyh my;yJ gpuhJ brhj;J tpguj;jpnyh bjhptpf;fg;gltpy;iy vd;Wk;> kD jgrpy; brhj;J tptuj;jpy; fz;l g[y vz;.934/28 kw;Wk; 934/26A brhj;Jf;fis mstPL bra;jjhfnth> mJ rk;ge;jkhf mwpf;ifapy; bjhptpf;ftpy;iy vd;W fhuzk; bjhptpf;fg;gl;Ls;sJ.

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5.O.S.No.38 of 2017 was filed by the respondent/plaintiff for a declaration that the second mentioned suit schedule property in S.No.934/26A was a pathway for access to the property in S.No.934/28 of the respondent/plaintiff. In the suit, the respondent/plaintiff filed I.A.No.248 of 2017 under Order XXVI Rule 9 of CPC for appointment of an Advocate Commissioner to inspect and measure the suit schedule property and to give a detailed report regarding its pathway.

6.It appears that an Advocate Commissioner was also appointed by the Court, who inspected the suit schedule property on 18.02.2017 and give an interim report.

7.It appears that the petitioners had also filed an objection on 13.03.2017 against the interim report of the Advocate Commissioner stating that the inspection that was carried out by the Advocate Commissioner appointed by the Court on

18.02.2017 was without notice and in absence of the petitioners and without the help of the surveyor.

8.The Advocate Commissioner has thereafter inspected the suit schedule property on 25.02.2017 and gave a final report on 23.02.2018, by measuring the suit schedule property with the help of the surveyor. The petitioners also filed his objection on 01.03.2018 to the final report of the Advocate Commissioner. Written Statement was also filed by the petitioners in June 2017.

9.Since the objections filed by the petitioners to the reports of the Advocate Commissioner was not taken seriously, the petitioners had filed I.A.No.2 of 2021 to scrap the interim report and final report dated 23.02.2018, which has been rejected by the Trial Court on 08.07.2022.

10.In support of his submissions, the learned counsel for the petitioners relied on the order of this Court in the case of A.Palaniappan V. K.Nallasamy and others [2008 (2) CTC 602].

11.I have considered the arguments advanced by learned counsel for the petitioners.

12.The case was heard on 30.3.2023. Thereafter, the case was listed on

24.04.2023. There was no representation on behalf of either the petitioners or the respondent on 24.04.2023. I have also perused the impugned order passed by the Principal District Munsif rejecting I.A.No. 2 of 2021.

13.Although the report of an Advocate Commissioner is not sacrosanct, an Advocate Commissioner is appointed only to assist the Court. In this case, an Advocate Commissioner was appointed at the behest of the respondent in I.A.No.248 of 2017. The Advocate Commissioner has also given an interim report dated

25.02.2017 and thereafter, a final report on 23.2.2018. The interim report was prepared without the help of a Surveyor. The final report of the Advocate Commissioner appears to have been prepared with the help of Surveyor after notice to the petitioners. The petitioners were also given a notice of the proposed date of the inspection of the property by the Advocate Commissioner. The petitioners, however, failed to appear on the date of inspection by the Advocate Commissioner along with the Surveyor on 25.02.2017.

14.The fact remains that the petitioners have also given their objections dated

13.03.2017 and 01.03.2018 to the interim and the final report of the Advocate Commissioner.

15.The objection of the petitioners to the report of the Advocate Commissioner appointed in I.A.No.248 of 2017 was that the Advocate Commissioner had not specified in the interim and final report as to which where the petition mentioned first item of property and second item of property and where was the pathway. Further, it had been objected that the Advocate Commissioner had not specified in the interim report as to how he had come to know the details of survey numbers and its ownership details as mentioned in the report. Further, it had been objected that the Advocate Commissioner has specified in the final report that he had measured the properties in S.No.924/26B, 934/26C and 934/27. Nowhere in I.A.No.248 of 2017 nor in the plaint in O.S.No.38 of 2017, the above said survey numbers have been mentioned and that the Advocate Commissioner had not specified in the report that he had measured the petition mentioned properties in S.Nos.934/28 and 934/26A.

16.In the grounds filed in support of the present Civil Revision Petition, the petitioners have also stated that the Advocate Commissioner has inspected the property without notice to them. It is submitted that the report was prepared by the the Advocate Commissioner was without properly identifying the properties in S.Nos.934/28 and 934/26A. However, the copy of the report that is available indicates that before the final report was prepared, the property was inspected along with the Surveyor.

17.Therefore, it is not open for the petitioners to ask for appointment of an Advocate Commissioner once again or to scrap the reports. It is always open for the petitioners to discredit the report of the Advocate Commissioner. If the petitioners succeed in discrediting the report of the Advocate Commissioner by eliciting contradictions in it, the report will loose its probative value and the report will be ignored by the Court at the time of final argument before disposal of the suit. Therefore, there is no merit in the present Civil Revision Petition. The impugned order, therefore, does not call for any interference. Therefore, the present Civil Revision Petition is liable to be dismissed. It is accordingly dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. NCC : Yes / No Index : Yes / No

28.04.2023 Internet : Yes / No smn2 To The Principal District Munsif, Valliyoor. C.SARAVANAN

, J.

smn2 DATED : 28.04.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date of Reserving the Judgment Date of Pronouncing the Judgment 24.04.2023 28.04.2023 CORAM: THE HONOURABLE MR.JUSTICE C.SARAVANAN and C.M.P.(MD)No.8768 of 2022 1.Essakiammal 2.Thavasikani ... Petitioners vs. Chellammal ... Respondent Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 08.07.2022, passed in I.A.No.2 of 2021 in I.A.No.248 of 2017 in O.S.No.38 of 2017, on the file of the Principal District Munsif, Valliyoor. For Petitioners : Mr.R.Maheswaran For Respondent : No Appearance