Palanivel vs Nagarajan
2021 Latest Caselaw 4261 Mad

                                                                              CRP.PD.No.2029 of 2016

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 18.02.2021

                                                       CORAM:

                           THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                CRP(PD).No.2029 of 2016

                     1. Palanivel
                     2. P.Uma                                                 ... Petitioners

                                                      Vs.
                     1. Nagarajan
                     2. Abdulsalam
                     3. Nabi
                     4. Irunbeevi                                           ... Respondents

                     PRAYER: Civil Revision Petition filed under Article 227 of the Constitution

                     of India, to set aside the order and decretal order dated 02.09.2015 in

                     I.A.No.320 of 2014 in O.S.No.101 of 2014 on the file of the District Munsif

                     Court at Thiruthuraipoondi District.



                              For Petitioners        : Mr.S.Arivazhagan

                              For Respondents        : No Appearance




                                                      ORDER

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This Civil Revision Petition is directed as against the fair and decretal

order passed in I.A.No.320 of 2014 in O.S.No.101 of 2014 dated

02.09.2015 on the file of the learned District Munsif, Thiruthuraipoondi

District, thereby, dismissing the petition seeking for appointment of an

Advocate Commissioner.

2. The petitioners are the plaintiffs. They filed the said suit as against

the respondents for permanent injunction, in respect of the suit property.

While pending the suit, the petitioners filed a petition for appointment of

Advocate Commissioner to note down the physical features of the suit

schedule property. The reasons mentioned in the affidavit filed in support of

the petition is that the petitioners refused to sell the property to the

respondents and as such, there was previous enmity between them. The

respondents are constructing building in their property which is situated

adjacent to the property of the petitioners. While constructing, they dump

the wastage of the construction material and also attempted to lay the pipe

line in the suit property. Therefore, the petitioners seek for appointment of

Advocate Commissioner to note down the physical features of the suit

property.

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3. On a perusal of the petition, it is evident that the petitioners sought

for appointment of Advocate Commissioner to inspect the suit property and

also verify the revenue records and submit a report. There is a dispute in

respect of title over the property between the petitioners and respondents

herein. Further, the suit itself filed for permanent injunction in which the

Advocate Commissioner cannot be appointed. It is settled provisions of law

that the appointment of Advocate Commissioner in the suit for injunction

would amount to collection of evidence. The concerned parties have to prove

their case by letting evidence.

4. In this regard, the learned counsel for the petitioners relied upon the

judgment of this Court passed in C.R.P.No. 1521 of 2015, in which, this

Court dismissed the Civil Revision Petition as against an application for

appointment of Advocate Commissioner in a suit for permanent injunction.

In the above case, the suit was filed by the plaintiffs for declaration and

injunction. There was specific averment that dispute in respect of identity of

the suit property. Further, it was alleged therein that the

defendants/respondents attempted to damage the ridges and also attempted

http://www.judis.nic.in CRP.PD.No.2029 of 2016

to encroach the suit property and alter the physical features of the suit

property. Therefore, the Court below appointed the Advocate Commissioner

to identify the suit property and the same was confirmed by this Court. As

such, the above judgment cited by the learned counsel for the petitioner is

not helpful to the case on hand.

5. Admittedly, the present suit is filed for permanent injunction in

which the Advocate Commissioner cannot be appointed to note down the

physical features of the suit property. Therefore, the trial Court rightly

dismissed the same and this Court finds no infirmity or illegality in the order

passed by the Court below.

6. Accordingly, this Civil Revision Petition is dismissed.

Consequently, the connected Miscellaneous Petition is closed. No costs.

18.02.2021 Speaking/Non-speaking order Index : Yes/No kv

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To

The District Munsif Court, Thiruthuraipoondi District.

G.K.ILANTHIRAIYAN,J.

http://www.judis.nic.in CRP.PD.No.2029 of 2016

kv

CRP(PD).No.2029 of 2016

18.02.2021

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