CRP(MD)/2182/2023 of SAHAYASHEELA Vs KULANTHAI ANTHONY on 9 October 2026

COMMON ORDER

These civil revision petitions are filed against the order dated 03.06.2023 passed in IA.Nos.1 and 2 of 2022 in IA.No.457 of 2019 in O.S.No.113 of 2019 on the file of the District Munsif Court, Uthamapalayam.

2. I.A. No. 1 of 2022 was filed by the petitioners/defendants seeking to set aside the report and plan submitted by the Advocate Commissioner. I.A. No. 2 of 2022 was filed seeking re issuance of the warrant to the same Advocate Commissioner to inspect and measure the suit property afresh and submit a fresh report, particularly with reference to the disputed portion of the suit property, which was dismissed. Aggrieved by the dismissal of the said applications by the trial Court, the petitioners/defendants have filed the present Civil Revision Petitions.

3. Brief facts of the case The respondent herein is the plaintiff in the suit instituted for the reliefs of mandatory injunction and permanent injunction. The case of the plaintiff is that the petitioners/defendants had erected stones, laid barbed wire, and fenced the pathway, thereby obstructing the plaintiff’s use and enjoyment of the pathway. Consequently, the plaintiff sought a direction for the removal of the alleged encroachment and a permanent injunction against further interference.

4. He further contended that the suit property originally belonged to one Kulanthaisamy Udaiyar. The properties were partitioned among his legal heirs under a partition deed dated 27.05.2002. Under the said partition, the first-scheduled property was allotted to Justin Prabhakaran, son of Kulanthaisamy Udaiyar. A portion of the property was subsequently purchased by Arockiyamary, wife of Vincent, who is the brother of Justin Prabhakaran. Arockiyamary thereafter settled the property in favour of her son, the respondent/plaintiff, under a settlement deed dated 22.01.2008. The petitioners/defendants are the son and daughters of Kulanthaisamy Udaiyar.

5. The petitioners/defendants disputed the case of the plaintiff in their written statement. They specifically disputed the plan annexed to the plaint and questioned the identity and measurement of the suit property. According to them, a larger extent of property had been settled in favour of the plaintiff and the extent of the property conveyed under the settlement deed had been wrongly measured by Arockiyamary. They further contended that the portion claimed as a pathway is part of the land allotted to them under the partition deed and did not constitute a pathway as alleged by the plaintiff.

6. During the pendency of the suit, the plaintiff filed an application seeking appointment of an Advocate Commissioner to inspect and measure the suit property and to note its physical features. The petitioners/defendants opposed the application and requested that the entire extent of the property originally belonged to Kulanthaisamy Udaiyar has to be measured to ascertain the respective extents allotted to the parties.

7. However, the trial Court allowed the application and directed the Advocate Commissioner to inspect and measure only the disputed property forming the subject matter of the suit, rather than the entire extent of the properties originally owned by Kulanthaisamy Udaiyar.

8. Pursuant to the said order, the Advocate Commissioner inspected and measured the property within the scope of the warrant issued by the trial Court and submitted a report and plan. The petitioners/defendants did not challenge the order appointing the Advocate Commissioner by filing a Civil Revision Petition, nor did they obtain any further direction for measurement of the entire extent of the property.

9. It is stated that objections had been raised to the Commissioner’s report. However, nearly three years after the report was submitted, the petitioners/defendants filed I.A. No. 1 of 2022 seeking to set aside the report and plan and I.A. No. 2 of 2022 seeking re issuance of the warrant to the same Advocate Commissioner for a fresh inspection and measurement of the disputed portion.

10. The trial Court dismissed both applications, principally on the grounds of delay and the petitioners’ failure to challenge the earlier order restricting the Commissioner’s inspection to the disputed property. The trial Court also observed that it would not decide the suit solely on the basis of the Commissioner’s report but would independently consider the entire oral and documentary evidence available on record.

11. Aggrieved by the said order, the petitioners/defendants have preferred the present Civil Revision Petitions.

12. The learned counsel for the petitioners submitted that, from the inception, the petitioners had disputed the identity and extent of the suit property and had requested the trial Court to direct the Advocate Commissioner to measure the entire property originally belonged to Kulanthaisamy Udaiyar. However, the trial Court restricted the Commissioner’s warrant to the disputed portion alone.

13. It was further submitted that, under the partition deed dated 27.05.2002, a portion of the property had been allotted to the petitioners/defendants and that the said portion constituted to be their own land and not a pathway. According to the petitioners, a fresh inspection and measurement of the property would clarify the actual location and extent of the respective properties and would assist the Court in determining the dispute effectively.

14. The learned counsel contended that, notwithstanding the delay in filing the applications, the interests of justice requires the Commissioner’s report and plan to be set aside and the warrant to be reissued to the same Advocate Commissioner for a fresh measurement. He therefore prayed that the order passed by the trial Court be set aside and the applications be allowed.

15. Per contra, the learned counsel for the respondent/plaintiff vehemently opposed the Civil Revision Petitions. He submitted that the application for appointment of an Advocate Commissioner had been allowed long ago and that the petitioners had neither challenged the order by way of a Civil Revision Petition nor demonstrated any specific error in the measurement undertaken by the Commissioner.

16. It was further contended that the Advocate Commissioner had acted strictly in accordance with the warrant issued by the trial Court and had not exceeded the scope of the order. Therefore, there was no justification for setting aside the report or directing a fresh inspection merely because the petitioners were dissatisfied with the limited scope of the earlier commission.

17. The learned counsel also submitted that the suit had been posted for judgment on 19.03.2024 and that the petitioners had not adduced evidence on their side. According to him, the applications had been filed at a belated stage only to protract the proceedings and delay the disposal of the suit. He therefore submitted that the trial Court had rightly dismissed the applications and prayed for dismissal of the Civil Revision Petitions.

18. The point that arises for consideration in these Civil Revision Petitions is: Whether the order of the trial Court dismissing the applications to set aside the Advocate Commissioner’s report and plan and to reissue the warrant to the same Advocate Commissioner for a fresh inspection and measurement of the disputed property warrants interference by this Court?

19. The rival submissions have been considered, and the materials available on record have been perused.

20. The principal grievance of the petitioners/defendants is that the Advocate Commissioner was directed to measure only the disputed portion of the property, whereas, according to them, the entire extent of the property that originally belonged to Kulanthaisamy Udaiyar ought to have been measured to establish the respective extents allotted to the parties under the partition deed.

21. It is not in dispute that the trial Court, while allowing the application for appointment of an Advocate Commissioner, specifically restricted the inspection and measurement to the disputed property forming the subject matter of the suit. If the petitioners were aggrieved by the limited scope of the commission, it was open to them to challenge the said order before the appropriate forum and seek appropriate directions. However, they did not challenge the order appointing the Commissioner or obtain any direction enlarging the scope of the commission.

22. The Advocate Commissioner thereafter inspected and measured the property in accordance with the warrant issued by the trial

Court and submitted the report and plan. No specific defect in the actual measurement carried out by the Commissioner has been demonstrated by the petitioners before this Court. In fact, the grievance of the petitioners is not directed against any particular error in the measurement or any deviation by the Commissioner from the warrant issued by the trial Court. Their principal contention is that the entire extent of the property ought to have been measured.

23. In such circumstances, the request to set aside the report and plan cannot be sustained merely on the ground that the Commissioner did not measure properties beyond the scope of the warrant issued by the trial Court. The Commissioner was bound to act in accordance with the order of appointment and cannot be faulted for adhering to the directions issued by the Court.

24. It is well settled that the appointment of an Advocate Commissioner is intended to assist the Court in elucidating the physical features of the property and other matters within the scope of the commission. A Commissioner’s report is a piece of evidence to be considered along with the other evidence available on record. It does not, by itself, determine the title or the rights of the parties. Equally, the mere fact that a party seeks a wider inspection does not, by itself, constitute a sufficient ground to set aside an otherwise valid report, particularly when no specific defect in the inspection or measurement has been established. The petitioners contend that a fresh measurement would establish that the disputed portion forms part of the land allotted to them under the partition deed and does not constitute a pathway. However, the question as to the identity, title, extent, and character of the disputed property is a matter to be determined by the trial Court on the basis of the pleadings, the documentary evidence, the oral evidence, and the Commissioner’s report, read together. The Commissioner’s report cannot be treated as conclusive proof of the respective rights of the parties.

25. The trial Court has specifically observed that it would not decide the suit solely on the basis of the Commissioner’s report but would independently consider the entire evidence available on record. Therefore, the petitioners’ apprehension that their rights would be determined exclusively on the basis of the existing Commissioner’s report is not well founded. They are at liberty to rely upon the partition deed and other relevant documents in support of their claim, and the trial Court is required to assess those materials independently in accordance with law.

26. It is also relevant to note that the applications seeking to set aside the report and reissue the warrant were filed at a belated stage. The learned counsel for the respondent submitted that the suit had already been posted for judgment on 19.03.2024 when the applications were perused. The petitioners have not demonstrated any specific error in the report that necessitates a fresh inspection. In the absence of such a demonstrated defect, the request for re-issuance of the warrant, at that advanced stage of the proceedings, does not warrant acceptance.

27. It is true that delay, by itself, may not invariably be a ground to reject an application if a genuine necessity for further inspection or measurement is established. However, in the present case, the petitioners have not shown that the existing report suffers from any material defect or that a fresh inspection is indispensable for the just adjudication of the dispute. Their request essentially seeks an enlargement of the scope of the commission originally ordered by the trial Court, an order which they did not challenge at the appropriate time. In these circumstances, this Court finds no sufficient ground to interfere with the order passed by the trial Court dismissing I.A.Nos. 1 and 2 of 2022. The trial Court has rightly observed that the Commissioner’s report would be considered along with the other evidence and that the ultimate decision would be arrived at independently on the basis of the entire record. Accordingly, the point for consideration is answered against the petitioners.

28. In the result, both the Civil Revision Petitions are dismissed. There shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.

20. Considering that the suit had already been posted for judgment, the learned District Munsif, Uthamapalayam, is directed to proceed with the matter and pronounce judgment in O.S.No.113 of 2019, on the file of the District Munsif Court, Uthamapalayam, within a period of two months from the date of receipt of a copy of this order, without any further unnecessary delay. 09-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No RM Copy to The District Munsif Court, Uthamapalayam.

R.POORNIMA, J. rm CRP(MD) Nos. 2182 & 2183 of 2023 AND CMP(MD) No. 10944 of 2023 09-10-2026