Madras High Court
Ponnuthai vs )Sumathy on 22 February, 2021
CRP(MD)No.1182 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.02.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRP(MD)No.1182 of 2020
and
CMP(MD)No.7504 of 2020
Ponnuthai ... Petitioner
vs.
1)Sumathy
2)Muruganantham ... Respondents
Prayer : Civil Revision Petition filed under Article 227 of the
Constitution of India, against the fair and decreetal order dated
30.08.2019 passed in I.A.No.2354 of 2018 in O.S.No.141 of 2015 on the
file of Principal District Munsif Court, Dindigul District.
For Petitioner : Mr.R.J.Karthick
For Respondents : Mr.H.Lakshmi Shankar
ORDER
This revision petition has been filed against the fair and decreetal
order dated 30.08.2019 passed in I.A.No.2354 of 2018 in O.S.No.141 of
2015 on the file of Principal District Munsif Court, Dindigul District.
2.The petitioner/plaintiff had filed a suit in O.S.No.141 of 2015 for
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CRP(MD)No.1182 of 2020
the relief of permanent injunction restraining the respondents/defendants
and their men from interfering with her peaceful possession of the suit
properties. Pending suit, the respondents/defendants filed the above I.A
for appointment of advocate commissioner to note down the physical
features of the suit properties which was allowed, against which, this
revision is filed.
3.According to the petitioner, she claimed title over the schedule
mentioned property by virtue of a sale deed dated 17.05.2002 in respect
of the second schedule property and the respondents are neighbours to
the petitioner's property and since the respondents/defendants demanded
to sell a portion of the petitioner's property which was refused by the
petitioner, the respondents started disturbing the petitioner and thereafter,
the suit came to be filed.
4.The respondents deny all the allegations by the petitioner. The
measurement of the properties claimed by the petitioner and the title is
denied. According to them, though in the plaint paragraph 6, it is
claimed that the petitioner/plaintiff has constructed a house in the second
item of property, the schedule of property in the plaint does not specify
any details of constructions in the two items of properties much less
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CRP(MD)No.1182 of 2020
reference to any house. The suit property has been shown only as a
vacant land in the plaint by suppressing the buildings standing in the
property and this was specifically attacked by the respondents in
paragraph 4 of the written statement by pointing out suppression of
material facts. According to the respondents, the plaintiffs and the
defendants are neighbours and they constructed a house in their portion
of the properties where some allegations arose in respect of the pathway
which was obstructed by the petitioner and in order to resolve the same, 5
days prior to the filing of the suit, the properties of the petitioner as well
as the respondents were measured and it was found that there was certain
encroachment made by the petitioner in the respondents' property and
therefore, the construction of the petitioner by encroaching into the
respondents' land was prevented by the respondents and after agreeing to
remove the encroachment, the petitioner has filed the present suit
disputing the same.
5.The learned counsel for the respondents/defendants would rely
on the judgment of this Court that in cases of encroachment, though the
petitioner has filed a suit for permanent injunction, advocate
commissioner can be appointed and in this regard, he would rely on the
judgments in Shanmugathai vs. Kamalammal and another reported in
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CRP(MD)No.1182 of 2020
2017 (2) CTC 353, Ponnusamy Pandaram vs. The Salem Vaiyappamalai
Jangamar Sangam reported in 1985 98 LW 112, Velmurugan vs. Joseph
reported in (2008) 6 CTC 282 and B.Amutha vs. Anandhi Sankara
Narayanan reported in 2016 5 LW 658.
6.The learned Judge finding that the respondents/defendants have
pleaded encroachment, ordered for appointment of advocate
commissioner, where I do not find any infirmity. The judgments relied
on by the respondents are applicable to the facts of the present case.
7.Accordingly, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
Index : Yes / No
Internet: Yes / No 22.02.2021
bala
To
The Principal District Munsif,
Dindigul District.
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CRP(MD)No.1182 of 2020
J.NISHA BANU, J.
bala
ORDER MADE IN
CRP(MD)No.1182 of 2020
DATED : 22.02.2021
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