Madras High Court
Chinnasamy vs R.Shanmugam on 3 December, 2021
C.R.P.(MD) No.2265 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.12.2021
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) No.2265 of 2014
and
M.P.(MD) No.1 of 2014
Chinnasamy ... Petitioner
vs.
1.R.Shanmugam
2.V.R.Subramani
3.V.R.Chidambaram
4.S.Nallammal
5.Banu @ Parameswari
6.Kasi
7.Nallasamy
8.K.Velsamy
9.Thulasimani
10.Ravikumar
11.K.M.Babu
12.Rajeswari
13.Venkateswari
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C.R.P.(MD) No.2265 of 2014
14.Rajarathinam (died)
Sivakumar
15.Rani
16.S.Rajasekaran
17.Kamala
18.P.Prema
19.Akilandeswari ... Respondents
PRAYER:- This Petition is filed under Article 227 of the Constitution of India,
to call for the records and set aside fair and executable order dated 17.06.2014
passed in I.A.No.16 of 2014 in A.S.No.87 of 2012 on the file of the learned
Principal Subordinate Judge, Karur.
For Petitioner : Mr.J.Barathan
For R1 to R5 : Mr.K.Suresh for
Mr.B.Saravanan
For R8 : No appearance
ORDER
The plaintiff, who is the 1st respondent in the 1st appeal and the
miscellaneous petition, which is the subject matter of the revision before this
Court, is the revision petitioner before this Court. He has challenged the order
passed by the learned Principal Subordinate Judge, Karur in I.A.No.16 of 2014
in A.S.No.87 of 2012 in and by which the learned Judge has allowed the
application for appointing an Advocate Commissioner to measure the entire suit
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C.R.P.(MD) No.2265 of 2014
survey field with the assistance of the Surveyor and the Village Administrative
Officer.
2.The facts in brief are as follows:-
3.The petitioner herein had filed a suit against the respondents 1 to 5
herein and others for demarcating the western boundary of the suit 'A' schedule
property, which belongs to him, declaring that the 'C' and 'D' schedule properties
belong to him absolutely and consequentially granting permanent injunction
restraining the defendants from interfering with his peaceful possession and
enjoyment of the suit properties. The defendants/respondents herein have filed a
written statement denying the petitioner's case. The trial Court after a detailed
contest found that the 'D' schedule property formed part of the 'C' schedule
property and declared the plaintiff’s right to the suit 'C' and 'D' schedule
properties and granted an order of permanent injunction. The respondents 1 to 5
herein were also directed to hand over the possession of 8 cents of land
demarcated in the Commissioner's plan, Ex.C2. Aggrieved by this judgment and
decree, the respondents 1 to 5 herein had filed A.S.No.87 of 2012 on the file of
the learned Principal Subordinate Judge, Karur. The primary ground on which
this appeal has been filed is that the entire extent of the Survey Field No.359,
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C.R.P.(MD) No.2265 of 2014
totally measuring 15.28 acres, has not been measured and only upon its
measurements, it would be possible to identify the suit property as the suit
property and the defendants' property are situate in the very same survey field
and the extent of the said survey field is 6 acres and 61 cents. Therefore, the
case of the respondents 1 to 5 is that without a proper demarcation, the learned
trial Judge had erred in declaring the petitioners' right to the suit property.
4.Pending the suit, the appellants/respondents 1 to 5 herein had come
forward with an application for appointing an Advocate Commissioner to
measure the entire extent of the suit survey field with the assistance of a Firka
Surveyor and the Village Administrative Officer. In the affidavit filed in support
of the said petition, the respondents 1 to 5 have stated that without measuring
the entire suit survey field, the alleged encroachment could not be identified and
further, the petitioners herein had taken out a totally un-sustainable stand that
the suit survey number consists of many houses and therefore, it can not be
measured. Such a stand as pointed out is not sustainable, since the plaintiff has
come forward with the specific case that the suit property belongs to them and
they are entitled to an injunction. Therefore, the respondents 1 to 5 emphasis the
need for appointing an Advocate Commissioner to measure the properties. The
petitioner had filed a very detailed counter stating that the Advocate
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C.R.P.(MD) No.2265 of 2014
Commissioner earlier appointed by the trial Court had inspected and measured
the properties and filed his report with the surveyor’s plan. The Advocate
Commissioner in his report has stated that the measurements had been taken
from the survey stone, which is marked as X.1. The defendants had not raised
any objection to the same and the present application was unnecessary and
made with an intent to protract the proceedings. They had further stated that the
respondents 1 to 5 have not even challenged the report by filing a revision or by
filing their objection.
5.The response to the above contention was that the Advocate
Commissioner's report and plan were taken only with respect to the petitioner's
property, whereas, the measurement of the properties belonging to the
respondents 1 to 5 had not been taken. Only if both the properties are measured,
the Court could come to a correct conclusion to find out as to whether there is
an encroachment on the side of the respondents 1 to 5 herein. The learned
Subordinate Judge, Karur allowed the above application and aggrieved by the
same, the petitioner/plaintiff is before this Court.
6.The main objection raised by the learned counsel appearing for the
petitioner was that already there was an Advocate Commissioner's report before
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C.R.P.(MD) No.2265 of 2014
the Court and this report has been filed by the Advocate Commissioner after
inspecting the property and taking measurements with the help of Firka
Surveyor. At that juncture, the respondents 1 to 5 herein had not objected or
given a memo of instructions that their property also need to be measured and
therefore, the order of the learned Judge is erroneous and is liable to be set
aside.
7.Mr.Suresh, learned counsel for Mr.B.Saravanan, learned counsel
appearing for the respondents 1 to 5 would submit that even before the trial
Court, the respondents 1 to 5 had taken out an application in I.A.No.748 of
2008 seeking to have the entire extent in S.F.No.359 measured so as to
appreciate the fact that the respondents 1 to 5 have not encroached into any
portion as alleged by the petitioner. He would further submit that considering
the fact that one of the prayers is for delivery of possession of the portion
alleged to have been encroached, there is a necessity for identifying the
properties of both the petitioner as well as the respondents 1 to 5 with their
measurements. Therefore, no exception can be taken the order now passed.
8.Heard the learned counsels on either side.
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C.R.P.(MD) No.2265 of 2014
9.Admittedly, the suit is one for demarcating the western boundaries of
the 'A' schedule property, which is the entire property belonging to the plaintiff
and to declare that the ‘C’ and 'D' schedule properties, which is a part of the 'A'
schedule property is the absolute property of the plaintiff and for a
consequential injunction. The petitioner has also sought to have the 'D' schedule
property delivered to him as it is the portion of the plaintiff's property, which is
alleged to have been encroached by the defendants. The defense to this
application is that the measurement of the entire extent of survey number 359
had not been taken by the Advocate Commissioner. The defendants had not
denied the fact that the plaintiff was entitled to an extent of 6.61 acres.
However, it is their contention that there is no encroachment in the plaintiff's
extent of 6.61 acres. Therefore, a need arises to verify the extent of the
properties in this survey number, namely, Survey Field No.359 in order to arrive
at a conclusion as to whether there is any encroachment into the property of the
plaintiff measuring an extent of 6.61 acres. The defense was also that all the
parties, who have an interest in the suit property have not been impleaded as
party/defendants. That apart, the Advocate Commissioner had not shown the
demarcation of the eastern and western boundaries of the suit property and
without demarcating the same, it is impossible to come to the conclusion as to
whether there has been an encroachment.
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C.R.P.(MD) No.2265 of 2014
10.It is informed by the learned counsel for the respondents 1 to 5 that the
earlier Advocate Commissioner has now become a Judicial Officer and
therefore, the warrant has to be issued to a new Advocate Commissioner.
11.In these circumstances, the Civil Revision Petition stands disposed of
directing the learned Principal Subordinate Judge, Karur to appoint a new
Advocate Commissioner to measure the total extent compromised in suit survey
number and to submit his report on file along with said Ex.C1 and Ex.C2. The
Advocate Commissioner shall be appointed within a period of 1 week from the
date of receipt of a copy of this order or its production and the Advocate
Commissioner shall positively submit his report within a period of 2 weeks
from the date of receipt of the warrant. No costs. Consequently, connected
miscellaneous petition is closed.
Index : Yes / No 03.12.2021
Internet : Yes / No
mm
To
The Principal Subordinate Judge,
Karur.
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C.R.P.(MD) No.2265 of 2014
P.T.ASHA, J.
mm
C.R.P.(MD) No.2265 of 2014
03.12.2021
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