@JUDGMENTTAG-ORDER
V. Bakthavatsalu, J.@mdashThe revision petitioners in C.R.P.No. 3257 of 2000 are the defendants in the suit. The revision petitioners in
C.R.P.No. 3548 of 2000 are the plaintiffs in the suit. Aggrieved by the order passed by the trial Court in I.A.No. 718 of 2000, both the plaintiffs
and the defendants have filed these two separate revisions.
2. The plaintiffs filed I.A.No. 718 of 2000 for appointment of a fresh Commissioner under Order 26, Rule 9, C.P.C. The averments contained in
the affidavit are as follows:- The plaintiffs filed suit for declaration and possession. A Commissioner was appointed in I.A.No. 244 of 1992.
Against the order passed in the said I.A., a revision was filed in the High Court. The High Court has directed the Commissioner to measure the
properties with reference to old survey numbers and identify the extent of the suit properties i.e., 91 cents. When the plaintiffs filed a memo of
instructions to the Commissioner to measure the properties in accordance with the directions of the High Court on 15.1.1998, the Commissioner
refused to receive the memo of instructions and the said fact was also informed to the Court on 16.11.1998. The Commissioner in violation of the
terms and conditions contained in the C.R.P. order, has measured the properties and prepared the plan. The plaintiffs also filed objections to the
said report. But the Commissioner did not file any reply to the above objection. Therefore, the report of the Commissioner and plan filed in
I.A.No. 244 of 1992 should be scrapped and a fresh Commissioner has to be appointed. Therefore, the petition is filed to scrap the report filed by
the Commissioner Selvaraj and appoint a fresh Commissioner and measure the properties and file the report with the assistance of a surveyor.
3. The respondents raised the following contentions in the counter. The Commissioner measured the properties after giving notice to both the
parties and that the Commissioner measured the property only in accordance with the directions given by the High Court. There is difference in the
extent between the old survey number and the new survey number. The Commissioner, as per the directions of the High Court, measured the
properties comprised in S.No. 385 with reference to the recitals found in the sale deed. The particulars are also contained in the survey plan.
Therefore, it is clear that the Commissioner has measured the property and filed a report only in accordance with the directions contained in the
C.R.P. The plaintiffs insisted the Commissioner to measure the property i.e., an extent of 91 cents comprised in the land of the defendants. As the
Commissioner did not accede to the request of the plaintiffs, the plaintiffs have come forward with this application for appointment of a
Commissioner. The allegation that the Commissioner has fixed the southern boundaries to favour these respondents is not true. Therefore, there are
no grounds to scrap the report and plan filed by the Commissioner.
4. The trial Court on consideration of the available materials has allowed the application appointing Mr. V.K. Thangavelu as the Commissioner to
measure the property as per the directions contained in pages 11 and 12 of the order in C.R.P.No. 992 of 1997 with the assistance of the
surveyor and identify the extent of 91 cents. The plaintiffs aggrieved by the said order has filed C.R.P.No. 3548 of 2000.
5. It is contended by the revision petitioners in the revision that the trial Court should have rejected the previous Commissioner''s report when the
previous Commissioner has not measured the suit property according to original survey number and that the Commissioner did not execute warrant
in accordance with the directions and orders passed in I.A.No. 171 of 1997 in I.A.No. 244 of 1992 and that when the report is not in accordance
with the directions of the High Court, the trial Court should have rejected the Commissioner''s report and appointed a new Commissioner.
Therefore, it is just and necessary that the report of the previous Commissioner should be scrapped and a Senior Advocate should be appointed
as a Commissioner as per the directions contained in C.R.P.No. 1251 of 1994 and C.R.P.No. 992 of 1997.
6. The defendants who are aggrieved by the order passed in I.A.No. 718 of 2000 have filed C.R.P.No. 3257 of 2000.
7. The revision petitioners have raised the following contentions in this revision:
The scope of the Commissioner is only to identify the property owned by the petitioners and the respondent. A Commissioner was appointed in
I.A.No. 244 of 1992 and thereafter, a warrant was reissued to the Commissioner to file a report with the assistance of the Surveyor. The trial
Court directed the Commissioner to measure the entire extent of the land claimed by the respondents and the petitioners. The second revision
petition C.R.P.No. 992 of 1997 was dismissed by this Court on 8.12.1997. After dismissal of the above C.R.P., no further order was passed and
the present application i.e., I.A.No. 718 of 2000 was filed belatedly to appoint a fresh Commissioner. When the Commissioner has inspected the
property several times and submitted several reports and plans, there is no justification to appoint a fresh Commissioner to carry out the same
work. The trial Court should have seen that without scrapping and setting aside the report of the Commissioner, a fresh Commissioner cannot be
appointed. The trial Court has acted in a mala fide manner because the Commissioner who has been appointed by the Court is a junior counsel
attached to the office of the advocate for the respondents i.e., Plaintiffs. Therefore, the order passed in I.A.No. 718 of 2000 is liable to be set
aside.
8. C.R.P.No. 3379 of 2000: The defendants are the revision petitioners. The revision is filed against the order passed in I.A.No. 1390 of 1999.
The defendants filed petition under Order 14, Rule 2, C.P.C.
9. The allegations in the affidavit are as follows:
The issue ""whether the suit is barred by limitation"" has been framed by the trial Court and the said issue has to be tried as a preliminary issue. The
plaintiffs filed an application to Tahsildar to sub-divide the property comprised in S.No. 385/1 and the Tahsildar by order dated 17.5.80 sub-
divided the property and the plaintiffs land was sub-divided as S.No. 385/IC i.e., 6.45 acres. Again the plaintiffs filed an application to sub-divide
S.No. 385/IC and accordingly the above property was sub-divided as 385/IC 1, 385/IC 2 and 385/IC 3. The plaintiffs also received the above
order sub-dividing the property. Thereafter, the second plaintiff gave a petition to divide the land comprised in S.No. 385/ IC 2 into 24 house sites
and the same was accorded by the Town Planning Director. The second plaintiff sold one house site in 1985 and another house site in 1987.
Therefore, it is clear that the plaintiffs came to know of the sub-division even on 17.5.1980 and subsequently, they also sold a portion of the
property. But the plaintiffs failed to file a suit within three years of the order passed on 17.5.1980. Therefore, the suit is barred by limitation and as
such, the above issue has to be tried as a preliminary issue.
10. The plaintiffs/ respondents filed counter raising the following contentions: The plaintiffs allege in the plaint that as they were in tentative
enjoyment of the property, the Tahsildar subdivided the same as S.No. 385/IC on 17.5.80. The plaintiffs are entitled to 7 acres 36 cents in
R.S.No. 385 as per the sale deed dated 23.9.1976. An extent of land measuring 91 cents is in possession of the defendants and the plaintiffs came
to know of the said fact only on 20.10.1991. Thereafter, the plaintiffs approached the Tahsildar on 28.10.1995 to measure their land i.e., 7 acres,
35 cents. The land in possession of the defendants is shown as ABCDEFG in the plan. The petitioners/ defendants did not raise the plea as to
limitation when the C.R.P''s. are pending in the High Court. There is no necessity to try the issue as a preliminary issue. The plaintiffs have not
signed in the survey record. They are not aware of the measurements taken by the surveyor and no notice was issued to the plaintiffs. The
allegation that the plaintiffs were aware of the sub-division even in the year 1980 is not true.
11. On consideration of available materials, the trial Court has come to the conclusion that the issue regarding limitation cannot be tried as a
preliminary issue, since the issue involves both question of fact and law. Aggrieved by the said order, this revision is filed.
12. It is contended by the revision petitioners that the plaintiffs filed the suit in the year 1991 only and that it is barred by limitation u/s 14 of Tamil
Nadu Survey and Boundaries Act and that the trial Court has committed error in not taking up the above issue as a question of law.
13. Tr.C.M.P.No. 20214 of 2000: This application is filed u/s 24 of the Code of Criminal Procedure by the defendants. It is alleged in the petition
that the trial Court without properly appreciating the provisions of Survey and Boundaries Act has dismissed I.A.No. 1390 of 1999. The trial
Court failed to scrap the earlier order filed by the Commissioner. The petitioners apprehend that appointment of Mr. V.K. Thangavelu, who is a
junior advocate of Mr. R. Gopinath is with the a hidden motive. It cannot be said that the trial Court was not aware of this fact. If the Court has to
decide on the basis of the report of the said Commissioner, the result would be that the Court would be bound to uphold the contentions of the
respondents. The suit is barred by limitation. The learned District Munsif, is indirectly favouring the respondents. Therefore, it is just and necessary
to transfer the suit from the file of District Munisif to another Court.
14. The respondents filed counter raising the following contentions:
The petitioners have been initiating several proceedings before this Court right from the year 1991, and in all these proceedings, the petitioners
never raised the contention that the suit is barred u/s 14 of the Tamil Nadu Survey and Boundaries Act. This application is filed only to drag on the
proceedings. The allegation in the affidavit that the petitioners apprehend that they will not get justice before the trial Court is not true and the
above allegation is highly mischievous and invented for the purpose of filing the transfer application. However, two suits, i.e., O.S.No. 454 of 1991
and O.S.No. 469 of 1994 are connected suits. There are no grounds to transfer the suit from the file of District Munisif Court, Dharapuram.
15. C.R.P.No. 3379 of 2000: The respondents/ plaintiffs filed the suit for declaration and possession in respect of 91 cents comprised in R.S.No.
385/13. The total extent of the property is 18.3 acres. It is contended by the petitioners/ defendants that the properties were already subdivided by
the Tahsildar even in the year 1980 and that the present suit is filed 10 years after the date of the order passed by the Tahsildar and as such, it is
barred u/s 14 of the Tamil Nadu Survey and Boundaries Act 1923. It is no doubt true that the trial Court, has also framed an issue on the question
of limitation, as, ""whether the suit is barred by limitation"". Learned Counsel for the revision petitioners wherein contended that the trial Court has
not properly considered the scope of Sections 13 and 14 of the Survey and Boundaries Act and that the trial Court failed to exercise its
jurisdiction conferred on the Court under Order 14, Rule 2, C.P.C., and that if the above issue is tried as a preliminary issue and a finding is given
in favour of the petitioners, then the whole suit can be disposed of. On the other hand, learned Counsel for the respondents contended that the trial
Court has given cogent reasons for dismissing the above application and that the power to try preliminary issue is discretionary and that if the
dispute in the suit involves both question of fact and law and if evidence is to be recorded to solve the dispute, then the Court cannot be insisted to
try the issue as a preliminary issue.
16. For proper appreciation of rival claims of the parties, it would be useful to refer to the relevant provisions contained in C.P.C. Order 14, Rule
2 reads thus:
Court to pronounce judgment on all issues:
(1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce
judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on
an issue of law only, it may try that issue first if that issue relates to:
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other
issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue).
It is, thus, seen from Sub-clause (2) to Rule 2 that the Court may try the issue first if the Court is of the opinion that the case or any part thereof
may be disposed of on an issue of law only. It is well settled that if the issue involves mixed question of law and fact, then all the issues should be
tried by the Court.
17. According to the revision petitioners, the sub-division had taken place in the year 1980 and the suit is filed in the year 1991. Learned Counsel
also relies upon Section 14 of the Act. Section 14 of the Act reads thus:
Any person deeming himself aggrieved by the determination of any boundary under Sections (9, 10, 11, 12-A, 12-B) may, subject to the
provisions of parts II and III of the (Indian Limitation Act 1963 (Central Act 36 of 1963) institute a suit within three years from the date of the
notification u/s 13 to set aside or modify the said determination and the survey shall, if necessary, be altered in accordance with the final decree in
the suit and the alteration, if any, shall be noted in the record.
The trial Court has held that the question as to whether the property in dispute is demarcated by measurements or whether the property is
demarcated on the basis of the documents have to be decided only by evidence in the suit. The Court has also given a finding that the dispute
involves mixed question of fact and law and as such, there is no need to try the issue as a preliminary issue. The Court has also held that the bar
imposed by Section 14 of the Act would apply only to the correctness of the boundaries and not to the question of title. For the above proposition,
the trial Court also relies upon a judgment of this Court reported in G. Nagarathnam Pillai v. Guruswami Pillai 1943 M.L.J. 311. Therefore, I fail to
see any material irregularity in the order passed by the trial Court.
18. It is stated by the plaintiffs in the counter that the plaintiffs came to know only on 20.10.1991 that the suit property i.e., an extent of 91 cents is
in possession of the defendants and that the fence in the property was put up temporarily for agricultural purpose and that on the basis of the same,
the defendants cannot claim right to the disputed property. The plaintiffs further allege that they did not sign in the survey records and that they are
not personally aware of the measurements taken by the surveyor and that no notice was issued to them by the surveyor. The plaint description will
show that the plaintiffs claim suit property which is situate on the north of the fence. It is also alleged by the plaintiffs that the above fence was put
up for agricultural purposes. Having regard to the above facts the trial Court is justified in coming to the conclusion that the alleged preliminary
issue requires recording of evidence. When once the Court comes to the conclusion that a particular issue can be decided only be recording
evidence, the High Court will not normally interfere with the said finding. It cannot be disputed that the powers conferred on the trial Court to try
an issue as a preliminary issue is discretionary. In the course of arguments certain decisions are cited at the bar. In the decision reported in Usha
Sales Ltd. Vs. Malcolm Gomes and Others, It is held in the above decision that the words, ""it may try"" are clearly indicative of the fact that
discretion is given to the Court and no duty is cast upon the Court to decide any issue as a preliminary issue. The Orissa High Court in the decision
reported in Madhabananda Ray and Another Vs. Spencer and Company Ltd., has also held that an issue of fact or a mixed question of fact and
law is not to be decided as a preliminary issue. The Punjab and Harayana High Court in the decision reported Daljit Singh Vs. Joginder Singh
Sekhon, has also held that mixed issue of law and, fact cannot be treated as preliminary issue. The Court has further held that if parties want to
lead evidence on an issue it ceases to be an issue of law. Learned Counsel for the revision petitioner contended that the word ""may"" occurs in
Order 14, Rule 2, C.P.C. shall be read as ""shall"" and therefore, it is mandatory on the part of the Court to try a particular issue as a preliminary
issue. In support of the same, reliance is placed on a decision reported in Hyderabad Asbestos Cement Products Ltd. Vs. Mohamad Argobasi
Enterprises and Another, . The Andhra Pradesh High Court has held that though the word ""may"" has been employed in Rule 2, it has been a
deliberate amendment in the year 1976 which is to be read as ""shall"" and therefore, it is mandatory. But in this case, it is held by the trial Court that
the preliminary issue involves mixed question of fact and law and that the evidence has to be recorded. Therefore, the above reported decision will
not assist the case of the revision petitioners in any way.
19. On an identical question, the Apex Court in the decision reported in Major S.S. Khanna Vs. Brig. F.J. Dillon, has held thus:
Under Order 14, Rule 2 where issues both of law and of fact arise in the same suit and the Court is of opinion that the case or any part thereof
may be disposed of an on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the
issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised
only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the
Court to try a suit on mixed issues of law and fact as preliminary issues. Normally, all the issues in a suit should be tried by the Court; not to do so,
especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit.
If the/principles of law laid down in the above decisions are considered along with the admitted facts and reasons given by the trial Court, I am
unable to sustain the contention raised by the revision petitioner that the trial Court failed to exercise the jurisdiction conferred on it properly. The
documents and Commissioner''s report are before the trial Court. Therefore, it is for the trial Court to decide whether or not a particular question
should be tried as a preliminary issue. The reasons assigned by the trial Court for dismissing the above application cannot be said to be vitiated by
any material irregularity. Therefore, I see no ground to interfere with the order passed by the trial Court.
20. In the result, C.R.P.No. 3379 of 2000 is dismissed.
21. C.R.P.Nos. 3257 and 3548 of 2000: It is seen from the facts of the case that the Commissioner was appointed at the instance of the plaintiff in
I.A.No. 244 of 1992. After the Commissioner filed the report, the plaintiffs filed I.A.No. 1371 of 1993 for re-issue of warrant to Commissioner to
inspect the suit property with the help of the surveyor. The defendants made an endorsement in the above application stating that they have no
objection for re-issue of warrant to Commissioner and thereupon the Court directed re-issue of warrant to the Commissioner to inspect the suit
property and measure the same with the help of the surveyor. It is seen that the defendants raised objection before the Commissioner stating that
he should not measure the land in S.No. 385/1 B and in view of the said objection, the Commissioner sought permission from the Court. In the
revision C.R.P.No. 1251 of 1994 preferred by the defendants, this Court has held that the trial Court has rightly overruled the objection raised by
the defendants and accordingly, the above C.R.P. was dismissed. It is seen that the defendants also filed suit O.S.No. 469 of 1994. The
defendants also filed application to measure the property with the assistance of the surveyor. The trial Court rejected the application. Therefore,
C.R.P.No. 145 of 1996 was filed. The petitioners also filed I.A. to measure the entire extent of the suit property and that was also rejected by the
trial Court. Therefore, C.R.P.No. 1368 of 1995 was filed. It is seen that the defendants claimed 3 acres, 12 1/2 cents in O.S.No. 469 of 1994.
The High Court in the common order has held that the Commissioner should measure the entire extent of the land claimed by the respondents i.e.,
7 acres, 36 cents and also he entire extent of the land of the petitioners measuring 3 acres, 12 1/2 cents. The High Court has further observed thus:
I must make it clear that whether the petitioners are entitled for 7 acres and 36 cents, whether there is encroachment of 91 cents and whether the
title was perfected by adverse possession of this portion of land are all matters to be decided by the trial Court on the bases of evidence. This
order is only for the purposes of clarifying the position as to the work to be carried out by the Commissioner so appointed. The same
Commissioner who is appointed earlier, has to carry out, the commission work with the assistance of a surveyor in respect of both the lands as
indicated above, and submit the report.
The High Court has also specifically observed that the same Commissioner has to carry out the work.
22. It is seen that a writ petition was also filed by one of the plaintiffs. It is seen that both the above writ petition and C.R.P.No. 992 of 1997 filed
by the defendants were tried together by the High Court. The High Court has held that this Court has already passed orders in C.R.P. Nos. 1368
of 1995 and 145 of 1996. The Court has also held that under Order 26, Rule 18, C.P.C., the Court is empowered to direct the Commissioner to
file a supplemental report and therefore the above C.R.P. was dismissed on 8.12.1997.
23. The plaintiffs filed I.A.No. 718 of 2000 alleging that the Commissioner has not measured the property and executed warrant in accordance
with the directions contained in the writ petition and C.R.P.No. 992 of 1997 and that therefore, the report of the Commissioner has to be
scrapped and a fresh Commissioner has to be appointed. The trial Court has observed in its order that there is no need to scrap the report of the
Commissioner and that another Commissioner should be appointed to inspect the property and locate 91 cents and that the appointment of
Commissioner would not prejudice the case of the defendants. Both parties are aggrieved by the above order of the trial Court.
24. The trial Court in its order has observed that in C.R.P.No. 992 of 1997, this Court has observed that the Commissioner should identify the
disputed land i.e., 91 cents and that the Commissioner who inspected the property has not located the property. In this context, it would be useful
to refer to the relevant findings of the High Court in C.R.P. No. 992 of 1997. Even prior to the orders passed in the above C.R.P., the High Court
in C.R.P.Nos. 1368 of 1995 and 145 of 1996 has observed in paragraph 5 of the order that the petitioner contended that the suit property i.e.,
subject matter of O.S.No. 454 of 1991 cannot be identified unless, the entire land in which 91 cents is claimed is measured. On consideration of
the above contentions, the Court has held that the question whether the petitioners are entitled to 7 acres 36 cents and the question whether there
is encroachment of 91 cents are all matters to be decided by the trial Court on the basis of the evidence. Therefore, the Court has directed the
Commissioner to carry out the work with the assistance of the surveyor in respect of both the lands. The above directions of the High Court are
also referred to by the learned Judge in the order passed in C.R.P.No. 992 of 1997. The learned Judge has observed that the Commissioner has
to identify the property after measuring the same on the basis of boundaries and documents and that when the Commissioner has not complied with
the direction of the Court and the Court has exercised the power of remitting the matter directing the Commissioner to file a supplemental report
and plan, it is only taking a piece of evidence and not adjudicating a right. The High Court has also held that it is open to the Court to direct the
Commissioner to file a supplemental report. As the Commissioner has not filed the report in accordance with the directions contained in the above
C.R.P, the Court seem to have appointed another Commissioner to carry out the directions contained in the C.R.P. order. It is no doubt true that
without scrapping or setting aside the previous Commissioner''s report, a fresh Commissioner cannot be appointed. The practice of appointing
fresh Commissioner is also deprecated by this Court in the decision reported in A. Arunachalam v. M. Thangavelu (1998)1 L.W. 658. In the
decision reported in Vemba Gounder v. Pooncholai Gounder (1996)1 M.L.J. 426 : 1996 T.N.L.J. 104, the Court laid down certain guidelines as
to when and how the second Commissioner can be appointed. In this case, the trial Court has held that the Commissioner has not executed the
warrant in accordance with the directions contained in the order. It is open to the trial Court to call for the supplemental report from the
Commissioner without scrapping the report of the earlier Commissioner. In this case, the Commissioner inspected the property number of times
and filed number of reports. In the above circumstances, the Court felt that it is not necessary to set aside the report of the previous Commissioner.
At the same time, the Court should not have appointed a fresh Commissioner, In any event, the Court should have reissued the warrant to the
same Commissioner with a direction to carry out the work in accordance with the directions given by the High Court.
25. Learned Counsel for the defendants contended that the Commissioner namely, Thangavelu appointed by the Court is a junior counsel attached
to the plaintiffs'' counsel. On the other hand, learned Counsel for the plaintiffs contended that the said advocate ceased to be a junior advocate of
plaintiffs'' counsel from the year 1990. It is needless to delve deep into the above question, since there is no need for the trial Court to appoint a
fresh Commissioner at all. As the earlier Commissioner has filed number of reports and plans, he should have been permitted to file the
supplemental report. For the above reasons, I hold that the order of the trial Court in appointing a fresh Commissioner cannot be sustained. At the
same time, I am not prepared to accept the contention of the parties that the entire report of the previous Commissioner should be scrapped. As
already stated, calling upon the Commissioner to file additional report or certain salient features cannot be a ground for scrapping the earlier report.
The Court is empowered to call for the supplemental report from the same Commissioner by reissuing the warrant.
26. In the result, the following order is passed: The Court is directed to reissue warrant to the same Commissioner who filed the earlier report by
giving specific directions. It is open to both parties to file memo of instructions to the Court to enable the Court to issue suitable directions to the
Commissioner. Both C.R.Ps. are disposed of accordingly. No costs.
27. Tr.C.M.P. No. 20214 of 2000 : It is alleged by the petitioners that they would not get justice before the District Munisif as he has passed
orders against the interest of parties and that in view of the above apprehension, the suit may be transferred. It is open to the petitioners defendants
to file a transfer petition to District Court, so that the District Court may call for the remarks from the concerned District Munisif. If the Court is
satisfied that there are grounds for transfer the suit will be transferred from the file of Principal District Munisif, Dharapuram. As the petitioners
have got other remedy in filing transfer petition to District Court, it is not just and proper to give a finding in this Transfer C.M.P. The petitioners
are directed to file an application to the District Court, if they are so advised. With the above directions, the Tr.C.M.P. is dismissed.
