S.Selvarani vs L.Veeran
2021 Latest Caselaw 24789 Mad

Citation : 2021 Latest Caselaw 24789 Mad
Judgement Date : 16 December, 2021

Madras High Court

S.Selvarani vs L.Veeran on 16 December, 2021

                                                                              C.R.P(MD)No.821 of 2020



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 16.12.2021

                                                    CORAM

                                   THE HONOURABLE MS.JUSTICE P.T.ASHA

                                          C.R.P(MD)No.821 of 2020 &
                                           CMP(MD)No.5575 of 2020


                     S.Selvarani                                 ... Petitioner
                                                    Vs.

                     L.Veeran                                    ... Respondent


                     PRAYER:- Civil Revision Petition filed under Article 227 of
                     Constitution of India, to set aside the order passed in IA.No.50 of 2020
                     in OS.No.55 of 2019 dated 27.07.2020 on the file of the District Munsif
                     cum Judicial Magistrate, Aravakurichi.


                                       For Petitioner         : Mr.K.Suresh

                                       For Respondent         : Mr.T.Antony Arulraj




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https://www.mhc.tn.gov.in/judis
                                                                                       C.R.P(MD)No.821 of 2020



                                                             ORDER

This revision petition is filed by the defendant challenging the

order passed in IA.No.50 of 2020 in OS.No.55 of 2019, in and by which,

the learned District Munsif cum Judicial Magistrate, Aravakurichi

allowed the application filed by the respondent/plaintiff for appointment

of Advocate Commissioner to note down the existing physical features of

the suit property.

2. The facts in brief are as follows.

(i) The respondent/plaintiff has filed a suit for mandatory

injunction to remove the unlawful construction put up on the suit

property and for consequential possession against the

petitioner/defendant. The respondent/plaintiff would submit that he has

purchased the property under a registered sale deed and has been in

exclusive possession and enjoyment of the same. The suit property exists

as a vacant site. The petitioner/defendant who had purchased the

property which is on the north of the suit property has commenced

construction and while constructing she had encroached into the

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https://www.mhc.tn.gov.in/judis C.R.P(MD)No.821 of 2020

respondent/plaintiff's property taking advantage of the absence of the

respondent/plaintiff from the suit property. In order to note down the

above fact and to remove the offending structure, it is necessary that the

same should be measured. For this reason, the respondent/plaintiff had

sought for appointment of Advocate Commissioner.

(ii) In the counter filed by the petitioner/defendant, she had denied

the contentions made by the respondent/plaintiff. The

petitioner/defendant would submit that the respondent/plaintiff had

already obtained a decree in OS.No.35 of 2012 in his favour and he

cannot therefore institute a fresh suit for the very same relief. In fact, in

the earlier suit, the said property to an extent of 3 cents was described as

A schedule property and S.F.No.378/1-D measuring 00.45.0 square

meters was described as B schedule property. It is also the case of the

petitioner herein that she had filed a suit in OS.No.525 of 2012 in respect

of the B schedule property and both the suits had been jointly tried and a

common judgment came to be delivered, decreeing the suit regarding the

A schedule property in favour of the respondent/plaintiff and dismissing

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https://www.mhc.tn.gov.in/judis C.R.P(MD)No.821 of 2020

the suit regarding the B schedule property in OS.No.35 of 2012 and

decreeing the suit in OS.No.525/2012 in respect of the B schedule

property in favour of the petitioner/defendant. The petitioner/defendant

would submit that she had put up construction only on her land and has

not encroached into the respondent/plaintiff's property. She would

further submit that the respondent/plaintiff has in fact, wrongly stated the

survey number and it cannot be measured by the Advocate

Commissioner. The petitioner/defendant has put up construction under

Government Scheme and she has to complete the construction within 3

months. The present suit is an attempt to prevent the

petitioner/defendant from putting up construction.

(iii) The learned Judge after perusing the records and after hearing

the parties had proceeded to allow the petition. The learned Judge had

passed the following order.

"Since the present application is filed for only limited relief to inspect the suit property and note down the physical features of the same, this Court is inclined to allow the application.

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https://www.mhc.tn.gov.in/judis C.R.P(MD)No.821 of 2020

In the result, Mr.S.Balasubramaniyan, Advocate is appointed as Advocate/Commissioner is directed to give due notice to the both parties. Visit the suit property in the presence of both the parties and their respective counsels and take measurement of the suit property with the help of the qualified firka surveyor and VAO available in the locality and to note down the existing nature of the suit property and all other physical features in and around and adjacent to the suit property of the litigants, at the time of measuring the suit property learned Advocate Commissioner is directed to consider the description of suit property mentioned in the decree in OS.No.35 of 2012 and the revenue records (F M B) concerned to the suit property and further he is directed that to measure the suit property and distinct the available extent of the suit property as per the decree in OS.No.35 of 2012 and the revenue records and to submit his detailed report and plan alongwith surveyor plan before this court on or before 31.08.2020."

Challenging the same, the petitioner/defendant is before this Court.

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https://www.mhc.tn.gov.in/judis C.R.P(MD)No.821 of 2020

3. Heard the learned counsel on either sides and perused the

records.

4. A mere perusal of the order clearly indicates that the learned

Judge has granted a relief much more than what was sought for by the

respondent/plaintiff and on this ground alone, the order deserves to be set

aside. However, considering the fact that the appointment of Advocate

Commissioner would definitely help the Court to come to a conclusion as

to whether there has been encroachment into the respondent/plaintiff's

property, the impugned order is modified and the Advocate