Madras High Court
Minnalammal vs S.Angamuthu on 27 April, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 27.4.2021.
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P.(PD) No.610 of 2021
and
C.M.P.No.5258 of 2021
1. Minnalammal
2. A.Bhaskar
3. A.Murali
4. A.Babu
5. Mrs.S.Shanthi Petitioners
vs.
S.Angamuthu Respondent
Civil Revision Petition filed under Article 227 of the Constitution
of India against the Fair and Decreetal order dated 8.2.2021 passed in
I.A.No.3 of 2019 in O.S.No.299 of 2019 on the file of the IV Additional
District Judge, Ponneri.
For Petitioners : Mr.E.Prabu
For Respondents : Mr.V.Rajasekar
ORDER
The revision petition has been filed by the defendants in
O.S.No.299 of 2019 now pending on the file of the learned IV
Additional District Judge dated 8.2.2021 passed in I.A.No.3 of 2019.
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2. The said Interlocutory Application had been filed by the
plaintiff seeking for appointment of Advocate Commissioner. It must
be pointed out that the said Application has been filed seeking an
omnibus prayer for appointment of Advocate Commissioner to
determine the physical features of the property and also report about
possession and also about the usage of the property, which aspects
cannot be or should not be assigned to the Advocate Commissioner to
determine. The burden of determining possession or establishing
possession or establishing the nature of usage during the course of
possession lies entirely with the plaintiff, who asserts possession or on
the party, who asserts possession.
3. A little more details of facts are required to decide the present
revision.
4. Originally, the Suit in O.S.No.116 of 2018 came to be filed in
the Sub Court, Ponneri. This suit was filed by five plaintiffs against
one Angamuthu seeking a judgment and decree against the said
defendant from interfering with item 2 of plaint schedule of properties
and with the plaintiffs' possession and enjoyment of the same. In the
schedule of property therein, suit item 1 was given as Survey
No.519/1A measuring 0.45 cents. This property is situated in Vallur
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Village, Ponneri Taluk, Thiruvallur District. The suit item 2 is the
southern portion measuring 0.22 cents which has been subdivided as
Survey No.519/1A2. It is claimed by the plaintiff that protection from
disturbance with the possession should be granted with respect to the
said 0.22 cents of land which, according to the plaintiff, is a part of
Survey No.519/1A, but, had been wrongly subdivided as Survey
No.519/1A2. That suit is pending. An order of injunction has already
been granted by the learned Sub Judge, Ponneri.
5. Subsequent to the institution of the suit, the defendant
therein viz., Angamuthu filed O.S.No.299 of 2019, which is now
pending on the file of the IV Additional District Judge, Ponneri, seeking
declaration of title and also permanent injunction restraining the
defendants therein/ plaintiffs in O.S.No.116 of 2018 from interfering
with possession. The suit schedule property in the said suit had been
given as 22 cents which had been been mentioned as item 2 in Survey
No.519/1A2 in O.S.No.116 of 2018.
6. The plaintiffs in O.S.No.116 of 2018 claim title to the said
property. That claim for title is disputed by the defendants. It may
not be proper on my part to examine the merits of the rival claims with
respect to the title or even with respect to possession since these are
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aspects to be decided on the basis of documents and oral evidence to
be adduced by the respective parties. I am confident that opportunity
would be given by the learned Judges before whom the two Suits are
pending.
7. In O.S.No.299 of 2018 as aforesaid, the plaintiff had filed I.A.
No.3 of 2019 seeking appointment of Advocate Commissioner with
various tasks to be assigned to the Advocate Commissioner including
reporting on possession. The learned Judge, in the course of his order,
had also observed that Survey No.519/1A has been subdivided as
Survey No.519/1A2 and in the course of his orders, stated that the
defendants in the said suit/plaintiffs in O.S.No.116 of 2018 have
questioned such sub-division and also challenged the said sub-division.
It is claimed that such sub-division was done behind their back. That
again is a matter to be determined only on the basis of evidence to be
adduced.
8. As a fact, the property had been sub-divided in the revenue
records. The learned Judge has stated that appointment of Advocate
Commissioner would be required to ascertain whether the sub-division
was made properly by the revenue authorities on the basis of records
and sale deed pertaining to the suit property. Once again, in para 10 of
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the order, the learned Judge had stated that the scope of the Advocate
Commissioner would be only to note down the physical features and
measurements of the suit property relating to the sub-division of the
property on the basis of material records available with the Tahsildar
and Taluk Head Surveyor. Whether such sub-division was done in
accordance with proper procedure or not is for the court to determine
on the basis of evidence.
9. The burden of establishing the same lies very heavily on the
defendants in O.S.No.299 of 2019/ plaintiffs in O.S.No.116 of 2018
since it is their case that the property had been wrongly sub-divided.
The Advocate Commissioner can never return a finding that sub-
division has been wrongly given or that it has been done on the basis
of the records available with the Tahsildar or with the Taluk Head
Surveyor. Those records have to be naturally summoned, examined
and then it has to be determined as to whether Survey No.519/1A had
been wrongly subdivided as Survey No.519/1A2 and thereafter, if an
issue with respect to wrongful sub-division is framed, the particular
issue has to be decided after giving opportunity to the parties to plead
on the same and also adduce evidence on the same.
10. If there is a dispute about the very identity of the property,
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then, an Advocate Commissioner can be appointed viz., if a pleading is
raised that on record there is a land with Survey No.519/1A2
measuring 0.22 cents, but, at the ground level, such property cannot
be identified, then, an Advocate Commissioner can be appointed. But
here, that is not the case. The plaintiffs admit that defendants in
O.S.No.299 of 2019 had wrongfully taken possession of 0.22 cents in
S.No.519/1A2. Whether the defendants have wrongfully took
possession or not, and whether the plaintiff in O.S.No.299 of 2019 is
entitled to declaration of title are subject matters of evidence.
Whether Survey No.519/1A2 is actually a part of Survey No.519/1A is
also a matter of evidence. These are all aspects which the learned
Judge should take up the responsibility of giving a finding on the basis
of available evidence before the court. He cannot shift that burden on
the Advocate Commissioner merely because there is a provision for
appointment of Advocate Commissioner.
11. The plaintiff in O.S.No.299 of 2019 may come forward to
adduce evidence to establish the documents with respect to title,
revenue records and with respect to sub-division of Survey No.519/1A
into Survey No.519/1A2 measuring 0.22 cents. In fact, the 0.45 cents
in Survey No.519/1A includes 0.22 cents in Survey No.519/1A2. The
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burden to establish title to the same rests very heavily on the plaintiff
in O.S.No.299 of 2019 and that the sub-division was wrongly done is
the next burden to be discharged by the plaintiffs in O.S.No.116 of
2018.
12. This evidence will have to be spoken to by the parties to the
suit. The revenue officials may be additionally summoned and
documents from the revenue authorities be putforth as evidence. Let
the parties adduce evidence and subject themselves to cross
examination and then, let the learned Judge give a decision on the
basis of the evidence recorded both oral and documentary.
13. The requirement of an Advocate Commissioner does not
arise at this particular point of time. It must also be noted that the
plaintiff in O.S.No.299 of 2019 has not sought for any relief of
recovery of possession. Therefore, there is no dispute with respect to
identity of the property, and it is clear that both the parties are
disputing only with respect to 0.22 in Survey No.519/1A2. Let the
evidence be recorded with respect to the issues framed and judgment
be delivered. Let the plaintiff take her own stand. Let the defendants
take their own stand. Let the Judge analyse the evidence and return a
finding on the issues.
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14. With the said observations, holding that the order under
revision requires interference, it is set aside. Let full opportunity be
given to the plaintiff and the defendants to adduce constructive oral
and documentary evidence and I am confident that opportunity will
also be given by the learned Principal District Judge, Thiruvallur and
also by the Sub Judge, Ponneri. The revision petition is, accordingly,
allowed. No order as to costs. The connected Miscellaneous Petition is
closed.
27.4.2021.
Index: Yes.
Internet: Yes.
ssk.
To
IV Additional District Judge,
Ponneri.
https://www.mhc.tn.gov.in/judis/
C.V.KARTHIKEYAN, J.
Ssk.
C.R.P.(PD) No.610 of 2021
and
C.M.P.No.5258 of 2021
27.4.2021.
https://www.mhc.tn.gov.in/judis/
