Madras High Court
Shameena Begum vs Ramalingam on 19 April, 2021
CRP (PD) No.867 of 2021
and CMP.No.7129 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CRP (PD) No.867 of 2021
and
CMP.No.7129 of 2021
Shameena Begum ... Petitioner/Plaintiff
Vs.
1.Ramalingam
2.Rajeswari
3.Sasikumar
4.Ranjith
5.Vediyappan
6.Suguna ... Respondents/Defendants
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
India seeking to set aside the order dated 21.12.2020 made in IA.No.02 of
2019 in O.S.No.57 of 2019, on the file of the District Munsif Court, Uthangarai
and thereby allow the above interlocutory application.
For Petitioner : Mr.Arokia Dass
For Respondents : No appearance
*****
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CRP (PD) No.867 of 2021
and CMP.No.7129 of 2021
ORDER
(This case has been heard through video conference)
The Civil Revision Petition has been filed by the plaintiff in O.S.No.57 of
2019, pending on the file of the District Munsif Court, Uthangarai, questioning
the order, dated 21.12.2020, in I.A.No. 2 of 2019 which application had been
filed taking advantage of Order XXVI Rule 9 and Section 151 CPC., seeking
for appointment of an Advocate Commissioner. The plaintiff had instituted the
suit seeking a Judgment and decree of Declaration of title and also for
Permanent Injunction.
2.It is the case of the plaintiff that on 10.03.2017, the defendants had
encroached and had removed the boundary stones, which was lying in between
the plaintiff's and the defendant's properties. On that occasion, the plaintiff had
lodged a complaint at the police station. As a fact, the lodging of the complaint
and the fact that the police had enquired into the entire issue have also been
stated in the written statement. Thereafter, in the year 2019, the suit was filed
after 2 years and the immediate cause of action for institution of the suit was
that the defendants were preventing the plaintiff from carrying on agricultural
activities. Along with the plaint, the plaintiff had also filed the instant
http://www.judis.nic.in
CRP (PD) No.867 of 2021
and CMP.No.7129 of 2021
application seeking for appointment of an Advocate Commissioner, which was
refused. Ouestioning that order, the present Civil Revision petition has been
filed.
3.The learned Judge had dismissed the said application in I.A.No.2 of
2019, stating that reasons for appointment of an Advocate Commissioner had
not been stated. Mr.Arokia Doss, learned counsel who appeared on behalf of
the revision petitioner would point out that in the affidavit filed in support of
the Interlocutory application, it had been stated that the boundary stones had
been removed in the year 2017 and that there was an interference in carrying
on agricultural activities.
4.In the year 2019, primarily, the plaintiff would have to establish his
case and have to establish the title over the property which is mentioned in the
schedule. He will also have to establish possession. At that point of time, if
there is a dispute with respect to the area mentioned by the plaintiff and if this
is questioned during the cross examination of the plaintiff, then the plaintiff, to
substantiate his evidence, can seek for appointment of an Advocate
Commissioner.
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CRP (PD) No.867 of 2021
and CMP.No.7129 of 2021
5.The Advocate Commissioner cannot be appointed for collection of
evidence. It is a burden cast on the plaintiff to establish his case. When there is
a particular issue questioning the layout of the land particularly with respect to
the boundary between the plaintiff's property and the defendant's property, then
to determine the physical features, an Advocate Commissioner can be
appointed. This would have to follow the evidence given by the plaintiff and
only when such evidence is challenged by the defendant during the course of
evidence.
6.Therefore, I am not inclined to interfere with the order passed by the
District Munsif Court, Uthangarai, dated 21.12.2020 made in I.A.No.02 of
2019. However, it is open to the plaintiff to first lead evidence in the suit and
then depending upon the nature of evidence, seek for appointment of an
Advocate Commissioner if required. If there is no requirement for appointment
of an Advocate Commissioner, the trial court shall continue further with the
trial.
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CRP (PD) No.867 of 2021
and CMP.No.7129 of 2021
7.With the said observations, the Civil Revision Petition stands
dismissed. Consequently, the connected miscellaneous petition also stands
dismissed. No order as to cost.
19.04.2021
Index:Yes/No
Internet:Yes/No
ssi
To
The District Munsif Court, Uthangarai.
http://www.judis.nic.in
CRP (PD) No.867 of 2021
and CMP.No.7129 of 2021
C.V.KARTHIKEYAN, J.,
ssi
CRP (PD) No.867 of 2021
and
CMP.No.7129 of 2021
19.04.2021
http://www.judis.nic.in
