K.Kandasamy v. The President Kannampalayam Town Panchayat

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 21.08.2009CORAMThe Hon'ble Mr.Justice R.SUDHAKARC.R.P.Nos. 114 to 119 of 2009andM.P.Nos.1 to 1 of 2009K.Kandasamy... Petitioner(in C.R.P.Nos.114 & 115 of 2009)/Respondent/PlaintiffK.N.Sadasivam... Petitioner(in C.R.P.Nos.116 & 117 of 2009)/Respondent/PlaintiffK.R.Palanisamy... Petitioner(in C.R.P.Nos.118 & 119 of 2009)/Respondent/Plaintiff -Vs.1.The President Kannampalayam Town Panchayat, Kannampalayam, Palladam.2.The Executive Officer, Kannampalayam Town Panchayat, Kannampalayam, Palladam. ... Respondents(in All CRPs.)/Petitioner/DefendantPRAYER IN CRP.NO.114 OF 2009 This Civil Revision Petition hasbeen filed under Article 227 of the Constitution of India againstthe fair and decreetal order passed on 25.01.2007 in I.A.No.194of 2003 in O.S.No.3 of 1998 on the file of the District MunsifCum Judicial Magistrate, Palladam, Coimbatore District. https://hcservices.ecourts.gov.in/hcservices/ PRAYER IN CRP.NO.115 OF 2009 This Civil Revision Petition hasbeen filed under Article 227 of the Constitution of India againstthe fair and decreetal order passed on 25.01.2007 in I.A.No.728of 2003 in O.S.No.3 of 1998 on the file of the District MunsifCum Judicial Magistrate, Palladam.PRAYER IN CRP.NO.116 OF 2009 This Civil Revision Petition hasbeen filed under Article 227 of the Constitution of India againstthe fair and decreetal order passed on 25.01.2007 in I.A.No.196of 2003 in O.S.No.4 of 1998 on the file of the District MunsifCum Judicial Magistrate, Palladam.PRAYER IN CRP.NO.117 OF 2009 This Civil Revision Petition hasbeen filed under Article 227 of the Constitution of India againstthe fair and decreetal order passed on 25.01.2007 in I.A.No.729of 2003 in O.S.No.4 of 1998 on the file of the District MunsifCum Judicial Magistrate, Palladam.PRAYER IN CRP.NO.118 OF 2009 This Civil Revision Petition hasbeen filed under Article 227 of the Constitution of India againstthe fair and decreetal order passed on 25.01.2007 in I.A.No.195of 2003 in O.S.No.8 of 1998 on the file of the District MunsifCum Judicial Magistrate, Palladam. PRAYER IN CRP.NO.119 OF 2009 This Civil Revision Petition hasbeen filed under Article 227 of the Constitution of India againstthe fair and decreetal order passed on 25.01.2007 in I.A.No.730of 2003 in O.S.No.8 of 1998 on the file of the District MunsifCum Judicial Magistrate, Palladam. For Petitioners : Mr.P.Valliappan For Respondents : Mr.V.R.Thangavelu, Government Advocate C O M M O N O R D E R Three persons viz., K.Kandhasamy, K.N.Sadhasivam andK.P.Palanisamy have filed the suit in O.S.No.3 of 1998, O.S.No.4of 1998 and O.S.No.8 of 1998 respectively before the DistrictMunsif Cum Judicial Magistrate Court, Palladam. All the abovethree persons are the revision petitioners/plaintiffs, claimingto be the owners of house property in Kadakkadu, AppachigounderStreet, Kannampalayam, Palladam Taluk. The respondents panchayattook steps to lay the drainage and therefore a survey was made.According to the respondents, the revision petitioners/plaintiffshave encroached certain portion of the road margin. The case ofthe revision petitioners/plaintiffs is that they have notencroached the road margin. https://hcservices.ecourts.gov.in/hcservices/

2. According to the revision petitioners/plaintiffs thelands are promboke land and they are entitled to assignment andfor the same appropriate application is pending before thecompetent authority. Fearing threat of a demolition andinterference by the respondents, the above said three personsfiled the three suits as above for permanent injunction. Writtenstatement has been filed by the respondents, denying theaverments made in the plaint.3. Pending suits, the revision petitioners/plaintiffsfiled I.A.Nos.10 of 1999, 12 of 1999 and 13 of 1999 respectivelyfor appointment of an Advocate Commissioner to note down thephysical features of the suit property. The Court below allowedthe said I.As., and Shri.Dhanapalan, Advocate was appointed asAdvocate Commissioner. He visited the suit site and filed areport, which is the first report.4. Thereafter, the respondents Panchayats have filedI.A.Nos.313,315 and 319 of 1999 for appointment of an AdvocateCommissioner to measure the suit property with the assistance ofTaluk Surveyor and it was allowed. Mrs.Amudha Nagarajan, Advocatewas appointed, as Advocate Commissioner to visit the suitproperty and to measure the suit property with the assistance ofthe Taluk Surveyor and file a report before the Court below andthis order has also been implemented. A report has been filedand it is referred to as the second Advocate Commissioner'sreport. 5. Thereafter, the respondents Panchayats have filedI.A.No.194 of 2003 in O.S.No.3 of 1998 to appoint the AdvocateCommissioner, Advocate Shri Dhanapalan who was first appointedin I.A. 13 of 1999 to revisit and measure the suit property alongwith the assistance of Taluk Surveyor and note down the physicalfeatures and to file his report with plan. In the said O.S.No.3of 1998, the respondents Panchayat also filed another I.A.No.728of 2003 to scrap the Commissioner's report filed by Ms.AmudhaNagarajan pursuant to the order in I.A.No.313 of 1999. 6. In O.S.No.4 of 1998 the respondents Panchayats filedI.A.No.729 of 2003 to scrap the Commissioner's report pursuant tothe order in I.A.No.315 of 1999. In the said O.S.No.4 of 1998 therespondents Panchayats filed another I.A.No.196 of 2003 toappoint the Advocate Commissioner Shri Dhanapalan as in the caseof I.A.No.12 of 1999 to revisit the suit property along with theassistance of Taluk Surveyor and to note down the physicalfeatures and to file his report and plan property. 7. In O.S.No.8 of 1998 the respondents Panchayats havefiled the I.A.No.730 of 2003 to scrap the Commissioner's report https://hcservices.ecourts.gov.in/hcservices/ of Ms.Amudha Nagarajan filed pursuant to the order in I.A.No.319of 1999. In O.S.No.8 of 1998 the respondents Panchayats filedanother I.A.No.195 of 2003 to appoint the Advocate CommissionerMr.Dhanapalan as in the case of I.A.No.10 of 1999 to revisitthe suit property along with the assistance of Taluk Surveyor andto note down the physical features of the suit property and tofile his report and plan.8. The above said six I.As filed by the respondentsPanchayat were contested by the revision petitioners/plaintiffs.By order dated 25.01.2007, the above six I.As filed by therespondents were allowed. In effect the reports of the Advocatecommissioner Mrs.Amutha Nagarajan in each of the case werescrapped and Mr.Dhanabalan, Advocate was appointed as theAdvocate Commissioner to revisit and measure the suit propertywith the assistance of the Taluk Surveyor. It appears thatMr.Dhanapalan, Advocate Commissioner visited the suit propertyalong with the Assistance of Taluk Surveyor on 06.09.1998 andfiled reports dated 20.11.2008 on 21.11.2008. Thereafter, therevision petitioners/plaintiffs filed the above six civilrevision petitions challenging the order dated 25.01.2007 passedby the District Munsif Cum Judicial Magistrate Court, Palladam ineach of the I.As in all the three respective suits.9. The main grievance of the learned counsel for thepetitioners in the civil revision petitions is that the secondAdvocate Commissioner Mrs.Amudha Nagarajan was appointed pursuantto the orders in I.A.No.313 of 1999 in O.S.No.3 of 1998,I.A.No.315 of 1999 in O.S.No.4 of 1998 and I.A.No.319 of 1999 inO.S.No.8 of 1998 to measure the property with the assistance ofTaluk Surveyor. The said I.As. were filed by the Panchayat. Therespondents Panchayats did not specifically file any objection tothe Commissioners report. Their grievance is only that theCommissioner viz.,Mr.Dhanabalan who visited the site first shouldhave been appointed to re inspect the property and measure thesame with the assistance of the Taluk Surveyor. Whereas theCourt below has appointed an another Advocate CommissionerMrs.Amudha Nagarajan to inspect the property with the assistanceof Taluk Surveyor. This according to the respondents will causeprejudice. 10. The further contention of the learned counsel for thepetitioners/plaintiffs is that the first Advocate Commissioner'sreport based on the order in I.A.No.13 of 1999 in O.S.No.3 of1998, in I.A.No.12 of 1999 in O.S.No.4 of 1998 and in I.A.No.10of 1999 in O.S.No.8 of 1998 is to note down the physical featuresof the suit property and the second Advocate Commissioner'sreport is to measure the suit property with the help of taluksurveyor. Both the report do not conflict with each other.There is no need for another Commissioner to inspect and report https://hcservices.ecourts.gov.in/hcservices/ once again. The Court below erred in scrapping the AdvocateCommissioner's report filed by Mrs.Amudha Nagarajan only on theground that the Advocate Commissioner Mr.Dhanabalan alone shouldreinspect the suit property along with the assistance of TalukSurveyor.11. The respondents Panchayats represented by thelearned counsel Mr.V.R.Thangavel submits that the first AdvocateCommissioner Mr.Dhanapalan has inspected the suit property and healone should have been appointed as Advocate Commissioner torevisit and measure the suit property with the assistance oftaluk surveyor. The Court below when passing the orderscrapping the report of the second Advocate CommissionerMrs.Amudha Nagarajan, came to the conclusion that anotherAdvocate Commissioner cannot be appointed without scrapping theearlier report. Hence, the order is justified. 12. He further contended that in order to avoidmultiplicity of litigation and technical complication assubmitted by the respondents Panchayats, the secondcommissioner's report filed by Mrs.Amudha Nagarajan was scrappedand the earlier Advocate Commissioner Mr.Dhanapalan was onceagain appointed to measure the suit property with the help oftaluk surveyor. Therefore, the order passed by the Court belowis justified, as the first Advocate Commissioner alone can givethe clear picture with regard to the suit property. In thiscase, he has already visited the property at the instance of thepetitioners/plaintiffs on the first instance. He supported theimpugned order.13. The decision taken by the Court below to scrap thereport of the second Advocate Commissioner Mrs.Amudha Nagarajanfiled pursuant to order in I.A.No.313 of 1999 in O.S.No.3 of1998, in I.A.No.315 of 1999 in O.S.No.4 of 1998 and in I.A.No.319of 1999 in O.S.No.8 of 1998 cannot be sustained for thefollowing reasons:- "(i) The first Advocate Commissioner was appointed at theinstance of the petitioners/plaintiffs to note down the physicalfeatures of the suit property. He filed a report. There is noobjection to it and there is no dispute. Therespondents/defendants filed subsequent I.As. to appoint anAdvocate Commissioner to measure the suit property with the helpof taluk surveyor, which was ordered by the Court below. Theproperty was measured and a report has been filed. (ii) The above said report has not been factuallydisputed and there is no allegation that the measurement done bythe taluk surveyor is improper and illegal. The procedure adoptedby the Advocate Commissioner, while measuring the property withthe help of the taluk surveyor is not in dispute. Both theplaintiffs and the defendants have filed the applications for https://hcservices.ecourts.gov.in/hcservices/ appointment of an Advocate Commissioner for different purposesviz., one is to note down the physical features of the suitproperty, another one is to measure the suit property with thehelp of taluk surveyor. There is therefore no conflict in thetwo reports."14. The dispute is with regard to the allegedencroachment of the property by the plaintiffs into the roadmargin. The second Commissioner's report, which is factually notin dispute was filed after measuring the property with the helpof taluk surveyor and the same is also will help in the effectiveadjudication of the suit. When the contents of the report of theAdvocate Commissioner based on the measurement done with the helpof taluk surveyor is not seriously disputed except for technicalreasons, and therefore the second inspection report of differentAdvocate Commissioner, cannot be the reason for the Court belowto scrap the said report. In fact the property was measured bythe second Advocate Commissioner with the help of taluk surveyorat the instance of the respondent/defendant and that report maybe more relevant for adjudication of the case. 15. The reason given by the Court below to scrap thesecond Advocate Commissioner's report is on the ground that therespondents Panchayat feel that there will be a technical flaw ontheir part, if they do not object to the report given by thesecond Advocate Commissioner, The applications for appointmentof Advocate Commissioner have been filed by both sides fordifferent purposes. One is to note down the physical features ofthe suit property, another one is to measure the suit propertywith the assistance of taluk surveyor. The report of the firstAdvocate Commissioner and that of the second AdvocateCommissioner will be appropriate and relevant for effectiveadjudication of the suit considering the nature of the reliefsought for. It does not appear to conflict or contradict eachother. On the face of the prayer. It is for the Court below toconsider the content of the reports on merits.16. The Court below was therefore not justified inscrapping the second commissioner's report in its orders inI.A.No.728 of 2003 in O.S.No.3 of 1998 dated 25.01.2007, inI.A.No.729 of 2003 in O.S.No.4 of 1998 dated 25.01.2007 and inI.A.No.730 of 2003 in O.S.No.8 of 1998. There was no necessityfor scrapping the report of Ms.Amudha Nagarajan, AdvocateCommissioner, who measured the property with the help of taluksurveyor at the instance of the respondents/defendants who filedthe I.A's for appointment of Advocate Commissioner. 17. The reappointment of Mr.Dhanapalan, as the AdvocateCommissioner to measure the suit property with the help of taluksurveyor once again in I.A.No.194 of 2003 in O.S.No.3 of 2008, https://hcservices.ecourts.gov.in/hcservices/ I.A.No.196 of 2003 in O.S.No.4 of 1998 and in I.A.No.195 of 2003in O.S.No.8 of 1998 is unwarranted. The taluk surveyor does nothave to survey the property once again having done so pursuant tothe order of the very same court at the instance of therespondents/defendants. A report has already been filed byMrs.Amudha Nagarajan, Advocate Commissioner based on the Courtorder. There cannot be two reports of the taluk surveyor. Thatwill confuse the Court and the suit proceedings . There is nojustification for scrapping the report of Advocate CommissionerMrs.Amudha Nagarajan and the Court below has not given adequateor acceptable reasons for doing so. Hence the order underchallenge is liable to be interfered with.18. The orders of reappointing of Advocate CommissionerMr.Dhanabalan in I.A.No.194 of 2003 in O.S.No.3 of 1998, inI.A.No.196 of 2003 in O.S.No.4 of 1998 and in I.A.No.195 of 2003in O.S.No.8 of 1998 therefore are set aside. The orders of theCourt below scrapping the second Advocate CommissionerMrs.Amudha Nagarajan's report are also set aside.19. The Court below is directed to adjudicate the casetaking into consideration the First Commissioner's report filedin I.A.No. 10 of 1999, I.A.No.12 of 1999 and I.A.No.13 of 2009and the second commissioner report filed in I.A.No.313 of 1999,I.A.No.315 of 1999 and I.A.No.319 of 1999. Both the reportsshall be taken for the purpose of disposal of the suit onmerits.20. The civil revision petitions are ordered accordingly.Since the suits are of the year 1998 and more than 10 years havelapsed, the trial Court is directed to dispose of the suits asexpeditiously as possible on or before 30.11.2009. Both theparties are agreed for early disposal of the suits.Consequently, connected M.Ps. are also closed. No costs.RrgSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe District Munsif Cum Judicial Magistrate,Palladam, Coimbatore District.+ 3 ccs to Mr.P.Valliappan, Advocate SR No.40779+ 1 cc to mr.V.R. Thangavelu, Advocate SR No.40917CKN(CO)SR/7.10.2009 C.R.P.Nos.114 to 119 of2009