Appointment of Advocate Commissioner at Appellate stage Suit for bare injunction dismissed by Trial Court

Citation

2014(2) CTC 68

CDJ 2014 MHC 863

(Prayer:- Civil Revision Petition preferred under Section 115 of Civil Procedure Code, against the Fair and Final order dated 12.11.2011 passed by the learned I Additional Subordinate Judge, Erode, in C.F.R.No.20317 of 2011 in A.S.No.40 of 2011.)

1. The plaintiff in the original suit, after loosing the legal battle in the trial Court, preferred an appeal before the lower Appellate Court in A.S.No.40 of 2011. In the said appeal, he filed an application in C.F.R.No.20317 of 2011 under Order 26, Rule 9 and Section 151 of the Code of Civil Procedure praying for appointment of a Commissioner to measure, demarcate and identify the suit property and fix the boundary line between the suit property and the highway poramboke land which is in the occupation of the respondents/defendants with the assistance of Taluk Surveyor. The said application was rejected by the learned lower Appellate Judge by an order dated 12.11.2011 as not maintainable. As against the said order, the present Civil Revision Petition has been filed.

2. Notice before admission was given to the respondent and the respondent has appeared through a counsel. The arguments advanced by Mr.N.Santhosh, learned counsel for the petitioner and by Mr.S.M.S.Shriram Narayanan, learned counsel for the respondent are heard. The materials produced in the form of typed set of papers are also perused.

3. The original suit was filed by the revision petitioner for the relief of permanent injunction against one Duraisamy, the deceased first plaintiff claiming that the suit property comprised in R.S.Nos.740/2,3,5,6,7 and 8 measuring a total extent of 1 Acre 65-1/4 Cents along with a Well situated therein absolutely belonged to the revision petitioner and he was in possession and enjoyment of the same and that the deceased first defendant made several attempts to encroach upon the suit property which was thwarted by the revision petitioner. In the description of property found in the plaint, except giving the survey numbers and the extent, the petitioner had not chosen to furnish the four boundaries, perhaps on the assumption that the description of the property with reference to survey numbers and extent would be enough. During the pendency of the suit, the first defendant died. Since he died as a bachelor, the respondent herein being his sister was impleaded as the second defendant. After contest, the suit was dismissed by the trial Court holding that the revision petitioner did not prove that he was in possession and enjoyment of the suit property and that hence he was not entitled to the relief of permanent injunction as prayed for in the plaint. For arriving at such conclusion that the revision petitioner was not in possession and enjoyment of the suit property, the leaned trial Judge also referred to the failure to mention the boundaries to the suit property in the description of the suit property in the schedule attached to the plaint.

4. Before the trial Court itself the revision petitioner filed an application for appointment of a Commissioner for submitting a report and plan after noting the physical features of the suit property. The report and plan of the Commissioner appointed by the trial Court were marked as Exs.C.1 and C.2. After considering the entire evidence, the trial Court rendered a finding as indicated supra, which led to the dismissal of the suit. The said decree of the trial Court dismissing the suit filed by the revision petitioner is under challenge before the learned lower Appellate Judge in the appeal in A.S.No.40 of 2011. The application for appointment of a Commissioner to measure the suit property and fix the boundary line demarcating the suit property and the road poramboke was held to be an attempt to fill up the lacuna and to altogether change the cause of action. The same was the reason for the rejection of the petition by the Court below.

5. If at all the revision petitioner himself is not confident as to where the boundary line between the suit property and the adjacent poramboke land lies, he ought to have filed the suit for demarcation of the boundary and not for bare injunction. When the failure to give the boundaries of the suit property was made as a ground for holding that the revision petitioner could not have been in possession of the suit property, such a finding could not be sought to be nullified by seeking appointment of a Commissioner to fix the boundary after measuring the suit property. If at all there is any defect in the plaint, the revision petitioner could have very well sought the permission of the Court to withdraw the suit and file a fresh suit projecting the absence of proper description of the suit property as formal and technical defect. Without doing it, the revision petitioner has chosen to indirectly convert the bare injunction suit into one for identifying and fixing the boundary of the suit property. The learned lower Appellate Judge has rightly held that the application could not be maintained in view of the fact that already a Commissioner appointed by the trial Court had visited the suit property and submitted a report and plan which were marked as Exs.C.1 and C.2.

6. This Court finds no defect or infirmity in the said order passed by the learned lower Appellate Judge. There is no merit in the civil revision petition and the same deserves to be dismissed. Accordingly, Civil Revision Petition is dismissed. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed.

Key word
#resjudicata
#advocatecommissioner
#injunction