Madras High Court
Karuppasamy vs The Tahsildhar on 23 December, 2021
C.R.P(MD) No.2093 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.12.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P (MD)No.2093 of 2021
and
C.M.P(MD) No.11117 of 2021
Karuppasamy ... Petitioner
Vs.
Ramasamy Nadar (Died)
1.The Tahsildhar,
Vedasandur Taluk,
Dindigul District.
2.The District Collector,
Collectorate,
Dindigul District.
3.R.Muniyappan
4.R.Yelumalai
5.Venkatesan ... Respondents
PRAYER:- Civil Revision Petition filed under Article 227 of the
Constitution of India, to call for the records relating to the fair order and
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C.R.P(MD) No.2093 of 2021
decreetal order dated 15.09.2021 made in I.A.No.19 of 2018 in A.S.No.
49 of 2015 on the file of the learned Additional District Judge, Dindigul
and set aside the same by allowing this civil revision petition.
For Petitioner : Mr.AL.Ganthimathi
ORDER
The petitioner/ appellant in A.S.No.49 of 2015 is the revision
petitioner before this Court challenging the order passed by the learned
Additional District Judge, Dindigul in I.A.No.19 of 2018 whereby the
learned Judge had rejected the petition filed for appointing an Advocate
Commissioner to note down the physical features of the suit property,
measure the same and file the report and plan.
2.The brief facts, which are necessary to dispose of this petition,
are as follows:-
(i) The petitioner, who is the plaintiff in O.S.No.143 of 2012 on the
file of the Sub Court, Vedasanthur (earlier O.S.No.18 of 2008 on the file
of the Additional Sub Court, Dindigul) had filed the suit for a declaration
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C.R.P(MD) No.2093 of 2021
that the suit third item of property belongs to the plaintiff, for a
mandatory injunction directing the removal of the encroachments thereon
and to hand over the possession of the third item of property to the
plaintiff, to declare that the patta granted and the sub division made in
respect of the third item in favour of the first defendant, is null and void
and also for an injunction restraining the plaintiff's peaceful possession
and enjoyment of the second item of property by the defendants 4, 5 and
6. The suit was ultimately dismissed by judgment and decree dated
12.06.2015. Challenging the same, the revision petitioner has filed
A.S.No.49 of 2015 on the file of the Additional District Court, Dindigul.
Pending the appeal, the plaintiff had filed the impugned application.
(ii) In the affidavit filed in support of the said application, the
plaintiff would contend that in the suit before the trial Court, the
defendants have not filed any documents to show the property that
belonged to them. The Advocate Commissioner who had inspected the
property had not measured the defendants property. The defendants have
not filed their document of title. Since these documents were not
submitted, the Commissioner was not able to measure the properties on
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C.R.P(MD) No.2093 of 2021
the basis of these documents. Meanwhile, the family of the defendants
have filed the suit in O.S.No.30 of 2014 for partition before the Sub
Court, Vedasanthur. Therefore, it is necessary to appoint an Advocate
Commissioner to measure the suit property on the basis of the defendants
documents and to measure the suit property as well as the defendants
property so as to arrive at a correct decision with reference to the
encroachment.
(iii) This application was resisted by the respondents by inter alia
contending that the application for appointment of the Advocate
Commissioner is an application filed after three earlier commissioners
had been appointed and their reports submitted. It is the case of the
respondents that they had filed a suit O.S.No.1559 of 1982 against the
revision petitioner. In the said suit, an application was filed for
appointing an Advocate Commissioner in I.A.2056 of 1982 and the
commissioner appointed therein had filed his report and plan. This suit
O.S.No.1559 of 1982 went against the plaintiff and the revision
petitioner herein had filed A.S.No.89 of 1984 and while this appeal was
pending, a compromise was recorded between the parties. According to
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C.R.P(MD) No.2093 of 2021
the compromise, the space between the plaintiff's house and the first
respondent's house measuring 3 feet was to be set apart as a street.
Since the revision petitioner herein had violated the terms of the
compromise, the first respondent has filed E.P.No.26 of 2021 on the file
of the District Munsif Court, Vedasanthur. In this execution proceeding,
a commissioner was appointed and he had submitted his report.
Thereafter, once again in the instant suit, an Advocate Commissioner has
been appointed and he has submitted his report. Therefore, when there
are three earlier commissioner reports available in respect of the very
same property, there was no necessity for appointing a fresh Advocate
Commissioner.
(iv) The learned Additional District Judge, Dindigul, after hearing
the parties, dismissed the said application setting out that the said
petition was nothing, but an attempt to protract the proceedings.
Therefore, the learned Judge had dismissed the application and
challenging the same, the revision petitioner is before this court.
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C.R.P(MD) No.2093 of 2021
3.Heard the learned counsel on either side and perused the records.
4.The present petition is filed on the ground that the respondents
herein have not produced their document of title before the trial Court
and therefore, the measurement of the respondents property could not be
taken. The respondents family have now filed a suit for partitioning their
property. In the said suit, the documents have been filed. Therefore, the
revision petitioner would seek to have the Advocate Commissioner
appointed to note down not only the suit property, but also the property
of the respondents as per the documents submitted by them in the Suit in
O.S.No.30 of 2014. As argued by the respondents, on three earlier
occasions Advocate Commissioner has already visited the property and
submitted his report.
5.The contention of the revision petitioner is that there is reference
to the suit property in the partition suit filed by the respondents and the
schedule of property given therein. Therefore, it is well open to the
revision petitioner to obtain certified copy of those documents to put
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C.R.P(MD) No.2093 of 2021
forward his case and there is absolutely no necessity to appoint the
Advocate Commissioner, especially, when there are three earlier reports
already available on the file of the court.
6. In these circumstances, the Civil Revision Petition is dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
23.12.2021
Index :Yes/No
Internet :Yes/No
cp
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:-
The Principal District Judge,
Thanjavur.
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C.R.P(MD) No.2093 of 2021
P.T.ASHA, J.
cp
C.R.P (MD)No.2093 of 2021
and
C.M.P(MD) No.11117 of 2021
23.12.2021
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https://www.mhc.tn.gov.in/judis
