Selvan vs Appadurai
2021 Latest Caselaw 10026 Mad

                                                                              C.R.P(NPD).No.1232 of 2017

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 20.04.2021

                                                           CORAM

                      THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

                                               C.R.P(NPD).No.1232 of 2017
                                                          and
                                                 C.M.P.No.5806 of 2017

                  Selvan
                  S/o.Rajadurai                                                ... Petitioner

                                                             Vs.

                  1.Appadurai
                  S/o.Ayyasamy Padyachi

                  2.Rajendran
                  S/o.Ayyasamy Padyachi                                       ... Respondents



                  Prayer: Petition filed under Article 227 of the Constitution of India, seeking
                  to set aside the fair and decreetal order dated 04.03.2017 made in I.A.No.11
                  of 2017 in A.S.No.10 of 2016 on the file of the learned Additional District
                  and Sessions Judge at Ariyalur.


                                     For Petitioner           : Mr.P.Dinesh Kumar
                                     For Respondents          : Mr.P.Valliappan for R1
                                                                No Appearance for R2

                  1/16



https://www.mhc.tn.gov.in/judis/
                                                                              C.R.P(NPD).No.1232 of 2017

                                                        ORDER

(The case has been heard through video conference) Civil Revision Petition has been filed seeking to set aside the

fair and decreetal order dated 04.03.2017 in I.A.No.11 of 2017 in A.S.No.10

of 2016 passed by the learned Additional District and Sessions Judge,

Ariyalur.

2.The brief facts of the case is that the revision petitioner / appellant

had purchased the suit property from one Muthukannammal on 22.07.1994.

The said Muthukannammal was originally entitled to the suit property by

virtue of settlement deed dated 01.12.1964 executed by one Subramanian.

The petitioner / appellant approving the right and title of Muthukannammal

on 23.08.1982 purchased 8 cents out of 35 cents in Survey No.470/9. The

petitioner / appellant had constructed a house and is residing there and the

advocate commissioner had inspected the same. A settlement register of the

Revenue Department is filed as a document before the Court to show that 35

cents of land out of 70 cents in Survey No.470/9 belong to Subramanian.

The advocate commissioner appointed by the Court had failed to take note

of all the documents as per the direction of this Court in while inspecting the

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

suit property, thereby, the petitioner had filed a petition, seeking to examine

the following witnesses:

(i) The Village Administrative Officer

(ii) The Revenue Inspector

(iii)Tahsildar of Kolapai Village

(iv)The Advocate Commissioner viz. T.Durairaj and

(v) The independent witnesses viz. Kandasamy and Baskar

for the purpose of proving the malafide intention of the said Narayanasamy

Naidu for creating false entries.

3.Further, the Advocate commissioner appointed by the Court had

exceeded jurisdiction and committed several errors in the report and plan,

for which, the petitioner / appellant filed an application for re-issuing the

commissioner warrant noting the objections and on the date of enquiry, the

petitioner / appellant filed additional affidavit stating that the V.A.O should

bring Adangal, Chitta and a Register of the Survey No.470/9 and to give

evidence regarding the same.

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

4.The respondents had filed a counter stating that the petition seeking

summons to the witnesses is not maintainable either under law or on facts. It

was averred that the appeal was remanded by this Court to fix the suit

property by appointing advocate commissioner with reference to revenue

records and also to let in oral evidence. Accordingly the commissioner was

appointed and the report and plan were filed. The petitioner / appellant also

filed documents in support of his contentions and thereby the examination of

further witnesses mentioned in the petition is not at all necessary for the

purpose of deciding the issue. Since the suit is for declaration and title, it

has to be established from the documents which have been filed. Further, it

has been stated in the counter that the witnesses cannot prove title and

examination of Tahsildar or Village Administrative Officer (V.A.O) will not

help the Court in deciding the title and that the Tahsildar or V.A.O cannot

say anything by way of oral evidence with regard to the title. It was further

contended that the witnesses cannot be permitted to bring the document,

since all the documents sought to be produced are public documents and

only the certified copies of the same can be obtained and produced. It was

also averred that the petition has been filed only for the purpose of delaying

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

the proceedings, since it was filed when the case was posted for arguments.

5.The Appellate Court vide a detailed order dated 04.03.2017 finding

that the petitioner / appellant had not filed any objections to the report of the

Advocate Commissioner within the time stipulated by the Court and finding

that the point to be decided is whether the vendor of the petitioner /

appellant has any right over the suit property or not and that the suit property

is already fixed and there is no dispute as to the identity of the suit property

or its location and also finding that the petition was filed wantonly to delay

the proceedings, had dismissed the petition. Further, the Appellate Court

had also held that the petitioner has not proved and satisfied he had already

applied for certified copies of the public documents and that he was not

provided the same as under Rule 75(3) of Civil Rules of Practice had

dismissed the petition, against which, the present revision has been filed.

6.Learned counsel for the revision petitioner / appellant would submit

that the revision petitioner is the plaintiff in the suit filed in O.S.No.346 of

1996 on the file of the District Munsif Court, Jayamkondan. The suit in

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

O.S.No.346 of 1996 was dismissed, against which, the petitioner had

preferred an appeal in A.S.No.22 of 1999 before the Subordinate Court,

Ariyalur and the Appeal was decreed in favour of the revision petitioner,

against which, the respondents / defendants had preferred a second appeal in

S.A.No.6 of 2006 before this Court. This Court vide order dated 14.09.2012

was pleased to set aside the judgment and decree passed in A.S.No.22 of

1999 and remanded the appeal back to the 1 st appellate Court viz. the Sub

Court, Ariyalur with directions to appoint an advocate commissioner with a

mission to visit the suit property with the help of a Government Surveyor

and measure the same with reference to the revenue records and also the

documents in Ex.B3 to Ex.B14 and locate the same. At this stage, due to

pecuniary jurisdiction, the appeal in A.S.No.22 of 1999 was transferred to

the file of the learned Additional District and Sessions Judge, Ariyalur and

renumbered as A.S.No.10 of 2016 and I.A.No.79 of 2015 was renumbered

as I.A.No.18 of 2016. Placing reliance on the directions of this Court in

S.A.No.6 of 2006, the petitioner / appellant had earlier filed a petition in

I.A.No.18 of 2016 for reissuing the commissioner's warrant to inspect the

suit property again. The Appellate Court vide order 16.12.2016 was pleased

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

to dismiss the same, observing that if the petitioner is aggrieved by the

report of the advocate commissioner for having committed errors during the

inspection of the suit property or mistake in his plan, the petitioner can very

well examine the Advocate Commissioner and bring out the discrepancies

and thereby I.A.No.11 of 2017 had been filed seeking to issue summons to

five witnesses viz., 1.Village Administrative Officer, 2.Advocate

Commissioner, 3.Tahsildar and two other independent witnesses viz.

Kandasamy and Baskar. Whereas, the Appellate Court without taking into

consideration the fact had dismissed the petition.

7.Learned counsel would further submit that there are grave errors in

the report filed by the Advocate Commissioner and very recently the

Advocate Commissioner has also passed away and it is necessary that the

errors in the report have to be pointed out by examining the V.A.O and two

other persons who know about the lie and location of the property. The

learned counsel would reiterate that since the Advocate Commissioner is no

more, the examination of the V.A.O is very much necessary and relevant for

proving the case of the petitioner.

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

8.Per contra, the learned counsel appearing for the respondents /

defendants would submit that the petition has been filed only with an

intention of protracting and delaying the trial. He would submit that the

petition was filed at the stage of arguments of the case. The learned counsel

would further submit that the examination of the witnesses is not relevant to

the issue on hand and there is no question with regard to the identity of the

property and that the suit is filed only for declaration and permanent

injunction with regard to the suit property and the examination of the

witnesses mentioned in the petition is not at all necessary and relevant to

decide the dispute between the parties since the witnesses sought to be

examined cannot prove the title. Examination of the witnesses will not help

the Court in deciding the title as they cannot speak about the title and about

the fraud alleged to be committed by the parties. Further, the petition has

been filed seeking to bring the public documents which are in custody of the

revenue staff and that no evidence had been let in by the petitioner to show

that he had applied for certified copies and that they were denied to him and

the Appellate Court finding that the petitioner has not satisfied the same

under Rule 75 (3) of Civil Rules of Practice had dismissed the petition and

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

he would submit that the revision petition is not maintainable and it has been

filed only with an intention to delay the trial.

9.Heard the counsels. Perused the impugned order.

10.In this case, the suit had been filed by the petitioner / appellant

before the trial Court seeking for declaration of his title to the suit property

and for a consequential permanent injunction. The suit property is 27 cents

of Punja land in survey No.470/9 out of the total extent of 70 cents on the

western half. The contention of the petitioner / appellant in the suit is that

out of 70 cents, 35 cents originally belonged to one Muthukannammal. It is

the case of the petitioner / appellant that Muthukannammal sold 8 cents out

of 35 cents to the 1st respondent herein and sold the remaining 27 cents to

the petitioner / appellant herein, thereby the 1st respondent is estopped from

denying the title of Muthukannammal and the right of the petitioner /

appellant that and the 1st respondent had further created a sale deed through

one Kishnammal Vahayara and started interfering with the peaceful

possession and enjoyment of the petitioner / appellant.

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

11.The respondents / defendants had denied the contentions of the

petitioner/ appellant and had filed a detailed written statement alleging that

the property was originally owned by one Palanivel Padayachi and his

brother Murugesa Padayachi. They have sold 8 cents of land on the northern

side to one Narayanasamy Naidu on 21.03.1964 and that the husband of

Muthukannammal is a signatory to the said sale deed as such

Muuthukannammal knows pretty well that the property does not belong to

her and that by fraudulent means and by misrepresentation she had sold the

same 8 cents of land to the 1st respondent and later when the fraud

committed by her was found out, she had returned the entire sale

consideration and thereafter the legal heirs of Narayanasamy Naidu viz.

Krishnammal and Rajagopal sold the 8 cents of land to the 1 st respondent

and the 24 cents of land was sold by Krishnammal and Rajagopal to the 2 nd

defendant on 21.08.1995. Patta, Chitta and tax receipts were in the name of

the 1st respondent since he is the elder brother and the 2nd respondent is the

younger brother. Since then the properties are in continuous possession and

enjoyment of the respondents.

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

12.The trial Court after framing issues finding that the vendor of the

petitioner / appellant has no right over the suit property had dismissed the

suit. Against which, the petitioner / appellant preferred an appeal to the

Subordinate Court, Ariyalur in A.S.No.22 of 1999. The Appeal was allowed

in favour of the petitioner / appellant and the decree and judgment of the

trial Court was set aside. Against which, the respondents herein preferred a

second appeal in S.A.No.6 of 2006 and this Court vide order dated

14.09.2012 had set aside the judgment and decree of the 1st appellate Court

and remanded the appeal back to the Sub Court, Ariyalur with a direction to

appoint an advocate commissioner with a mission to visit the suit property

with the help of a Government Surveyor and measure the same with

reference to the revenue records and also the documents in Ex.B3 to Ex.B14

and locate the same. This Court had also directed the the 1st appellate Court

to give due opportunity to both sides to let in additional and documentary

evidence and dispose of the entire matter within five (5) months from the

date of receipt of a copy of the order.

13.Thereafter, the Sub-Court, Ariyalur had appointed an advocate

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

commissioner on 11.07.2013 and the report of the advocate commissioner

had been filed on 04.08.2014. Though the 1st appellate Court had called for

objections, no objections were received within the stipulated time and hence

the appellate Court had directed the parties to advance arguments on

11.08.2014, however, no arguments were advanced till 26.02.2015.

Thereafter, a petition in I.A.No.79 of 2015 was filed by the petitioner on

05.01.2015 for reissuing the commissioner's warrant. At that stage, the case

was transferred to the file of the learned Additional District & Sessions

Judge, Ariyalur, by the order of the learned Principal District Judge for

disposal in accordance with law and A.S.No.22 of 1999 was re-numbered as

A.S.No.10 of 2016 and I.A.No.79 of 2015 was re-numbered as I.A.No.18 of

2016. Thereafter, another application in I.A.No.56 of 2016 had been filed

for receiving additional documents which was allowed by the appellate

Court. Thereafter, after much delay, the appellant / petitioner had examined

himself and Ex.A4 to Ex.A8 had been marked on 10.01.2017. Thereafter, the

appellant did not complete the examination on that day and on 12.01.2017,

24.01.2017, 30.01.2017 and 01.02.2017, the appellant remained absent and

his evidence could not be completed. On 02.02.2017, the appellant re-

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

appeared and marked Ex.A9 to Ex.A12 and his cross examination was also

could not be completed due to non cooperation from the appellant side. On

21.02.2017 the adjournment petition was filed by the petitioner / appellant

and it was allowed with cost and the appellant (P.W.1) was directed to

appear for cross examination. However, the revision petitioner / appellant

on the next hearing date also failed to appear before the Court, instead the

counsel filed a petition that the whereabouts of the appellant is not known to

him and sought time. Thereafter, only on 27.02.2017, the petitioner /

appellant re-appeared and subjected himself for cross examination and on

the same day, the appellant examined his brother as P.W.5. On 28.02.2017,

the application in I.A.No.11 of 2017 was filed seeking for issuance of

summons to five witnesses including V.A.O, Tahsildar and the Advocate

Commissioner.

14.The 1st Appellate Court taking into consideration the conduct of

the revision petitioner / appellant and finding that the petition was filed only

to delay the proceedings and protracting the case and also finding that the

revision petitioner / appellant has not made out a case for summoning the

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

witnesses had dismissed the same.

15.On perusal of the records, this Court is also of the opinion that the

petitioner has not made out a case for summoning the witnesses. Further, he

had already marked the documents and that he has not satisfied the 1st

Appellate Court with regard to Rule 75(3) of Civil Rules of Practice. As

rightly stated by the Appellate Court, it is not a case that by examination of

witnesses, the title of the property can be established. I do not find any

illegality in the order passed by the 1st appellant Court and thereby it

warrants no interference by way of revision.

16.Since the appeal is of the year 1999, direction is issued to the

Appellate Court to dispose of the appeal as expeditiously as possible,

preferably within a period of four (4) months from the date of receipt of a

copy of this order. It is made clear that the observations made in this

revision are only for disposing of the revision petition and it will not have

any bearing in the appeal. The Appellate Court shall deal the case on its own

merits and in accordance with law.

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

17.This Civil Revision Petition stands dismissed accordingly.

Consequently, the connected miscellaneous petition is also dismissed. No

costs.

20.04.2021 kas

Index : yes / no Internet : yes / no

To.

1.The Additional District & Sessions Judge Ariyalur

2.The District Munisf Court Jayamkondan

3.The Subordinate Court Ariyalur

https://www.mhc.tn.gov.in/judis/ C.R.P(NPD).No.1232 of 2017

A.D.JAGADISH CHANDIRA, J.

kas

C.R.P(NPD).No.1232 of 2017 and C.M.P.No.5806 of 2017

20.04.2021

https://www.mhc.tn.gov.in/judis/