Madras High Court
Asiya Begam ... 1St vs Zeenath Nisha on 7 April, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.04.2021
Coram
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P. (PD) No. 36 of 2019
And
C.M.P.No. 384 of 2019
1. Asiya Begam ... 1st Petitioner/1st petitioner/1st Appellant
2. Sheik Dawooth
3. Shakul Hameed
4. M. Jaleel
5. M. Abbas ... Petitioners 2 to 5
L.Rs., of the deceased 2nd petitioner
-Vs-
Zeenath Nisha ... Respondent / Respondent/Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, against the fair ad decretal order dated 20.07.2017
made in I.A.No. 04 of 2015 in A.No. 24 of 2013 on the file of the learned
Sub Court, Bhavani.
***
2
For Petitioners : Mr. N. Manokaran
For Respondent : Mr. J.Franklin
ORDER
Heard Mr.N.Manokaran, learned counsel for the petitioners and
Mr.J.Franklin, learned counsel for the respondent.
2. I.A.No. 4 of 2015 had been filed by the present petitioners,
who were the appellants in A.S.No. 24 of 2013 before the Sub Court at
Bhavani. The said application was filed seeking appointment of an
Advocate Commissioner to measure the suit property and file a report.
3. The suit had been filed for a declaration and mandatory
injunction with respect to the suit property. The suit was decreed. The
present petitioners herein had filed an appeal in A.S.No. 24 of 2013.
Pending the said appeal, they had filed I.A.No. 4 of 2015 seeking
appointment of an Advocate Commissioner. Purpose for which they sought
Advocate Commissioner is for measurement of the suit pathway with the
help of surveyor to determine whether the pathway really exists.
4. A counter had been filed by the respondent herein objecting to
the said request and also contending that a portion of the pathway, which
had been earlier encroached by the present petitioners, had been restored
after the trial Court had given a Judgment decreeing the suit filed by the
respondent herein.
5. It is also seen that even before the trial Court an Advocate
Commissioner has been appointed for the very same purpose and he had
also filed reports under Exs. C-1 and C-2. The learned Judge while
examining the order stated that the present petitioners could have opted to
measure the pathway during the pendency of the suit in the trial Court itself.
It was also stated that there was no dispute regarding identity with respect
to the pathway even before the trial Court. It had also been pointed out that
the suit had been filed in the year 2018 and 9 years had lapsed and
therefore, it would not be practically possible to once again revisit the entire
issue.
6. The learned counsel for the petitioners stated that the Advocate
Commissioner was initially appointed before the trial Court for the very
same purpose. However, objections were not filed to his report. He was also
not called upon to graze the witness box and his report was not subjected to
cross examination. These are the steps which the petitioners should have
taken before the Trial Court itself. They cannot revisit the same issue but
filing another application seeking appointment of Advocate Commissioner
for the very same purpose with respect to the very same pathway, I do not
find any reason to interfere with the order of the learned trial Judge. Hence,
the Civil Revision Petition is dismissed. No order as to costs.
Consequently, connected Miscellaneous Petition is closed.
7. Parties are advised to go before the Appellate Court and
advance arguments in the Appeal. The learned Judge may bestow his
attention to disposing of the Appeal at the earliest.
07.04.2021
vsg
Index: Yes/No
Internet: Yes/No.
Speaking / Non speaking
C.V.KARTHIKEYAN, J.
vsg
C.R.P. (PD) No. 36 of 2019
And
C.M.P.No. 384 of 2019
07.04.2021
