Madras High Court
V.Seerangan vs P.Subramani on 8 January, 2021
C.R.P.No.2293 of 2020 and
C.M.P.No.14370 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 08.01.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.2293 of 2020 and
C.M.P.No.14370 of 2020
V.Seerangan ... Appellant
Vs.
1. P.Subramani
2. Rathinam
3. Shanthi
4. Murugesan
5. Mahadevan
6. Mohan
7. Chinnathayee
8. Perumal
9. Govindammal ... Respondents
Civil Revision Petition is filed under Article 227 of the Constitution of
India to set aside the order and decreetal order dated 06.01.2020 passed
by the learned III Additional District Judge, Salem made in unnumbered
I.A.No.. of 2019 in A.S.No.32 of 2019.
For Petitioner : Ms.S.Sasikala
1/8
https://www.mhc.tn.gov.in/judis/
C.R.P.No.2293 of 2020 and
C.M.P.No.14370 of 2020
ORDER
The Revision Petitioner, who is the plaintiff has filed the suit in
O.S.No.46 of 2016 before the learned Principal Subordinate Judge, Salem
with a prayer to direct the respondents / defendants to divide the suit
properties into four equal shares by metes and bounds and allot one such
share to the petitioner / plaintiff by passing preliminary decree for partition
and to appoint an advocate commissioner to divide the suit properties by
metes and bounds as per the preliminary decree and allot the plaintiff's
share by passing the final decree.
2. The suit was contested by the petitioner / plaintiff and the
respondents / defendants and judgment was rendered on 05.01.2019,
wherein the said suit was dismissed stating that one Sengodan, brother of
the petitioner / plaintiff has sold his share to the mother of the respondents
1 and 2 / defendants 1 and 2, namely Perumayee under the Ex.B.2, Sale
deed. The plaintiff has not questioned the said Ex.B.2 executed by the
said Sengodan. It is also not the case of the plaintiff that the said
Sengodan has executed the Ex.B2 in respect of the undivided joint family
property. Hence it is evident that after the oral partition as admitted by
P.W.1 between Erusa Gounder and Valliya Gounder, there was a partition
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C.R.P.No.2293 of 2020 and
C.M.P.No.14370 of 2020
between the sons of Valliya Gounder, namely Sengodan and the plaintiff
on the basis of which the said Sengodan has executed Ex.B2, sale deed in
respect of his share to the said Perumayee. The plaintiff has not denied the
Ex.X1, Revenue Records in his name in respect of some of the sub
divisions in the suit S.No.11/6. Absolutely there is no reasonable
explanation on the part of the petitioner / plaintiff for getting the Ex.X1,
revenue records in his name in respect of some of the sub divisions in the
suit survey number. Hence plaintiff has filed a false case, as if there was
no division among the said Erusa Gounder and Valliya Gounder during
their life time and thereby held that the plaintiff was not entitled to the relief
of partition.
3. In consequence, aggrieved against the same, an appeal was filed
by the petitioner / plaintiff and the same was numbered as A.S.No.32 of
2019. When the said suit was pending before the learned III Additional
District Judge, Salem, the petitioner / plaintiff has taken out a unnumbered
I.A. stating that without appreciating the oral and documentary evidence,
the trial court had proceeded to dismiss the suit. The respondents had
created documents at the time of updating patta and if the suit property
was orally partitioned, the documents would show the pathway and the way
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C.R.P.No.2293 of 2020 and
C.M.P.No.14370 of 2020
to reach the other end of the property of the shares and the same will show
that the respondents have managed to get revenue records during
updating patta, which is not valid in law. Further, the petitioner prayed for
appointment of Advocate Commissioner to note down the physical features
in the suit property and to file his report drawn to scale before the said
Court.
4. Further, the learned III Additional District Judge, Salem, without
even numbering the said petition has rejected the same and the said order
is reproduced hereunder:-
"Heard the petitioner side. This petitioner side seeking
appointment of commissioner to visit the suit property and note
down the physical features of the same on this appeal. On
perusal of records the petitioner side failed to state any reason
for not filing this application before the trial court. Further, the
suit is filed for partition with other prayer. In this situation, the
petitioner side without stating any reason or without filing any
application under Order 41 Rule 27 CPC, directly filed this
application for inspecting the suit property by the commissioner.
In this situation, the petitioner side relied upon the guidelines of
Hon'ble Supreme Court of India reported in 2008 (8) SCC 671
in Haryana Waqf Board V. Shanti Sarup and Others in which
the appellant therein filed application for commission before the
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C.R.P.No.2293 of 2020 and
C.M.P.No.14370 of 2020
trial court as well as appellate court for appointment of
commissioner to demarcation of suit land. But above said
situation not available on this matter on hand. In considering
the above circumstances seeking appointment of commissioner
by the petitioner is no way acceptable and hence it is decided
to reject this application."
5. The learned counsel for the petitioner submitted that the decision
of the lower Court in unnumbered Interlocutory Application is based on the
technicality, wherein the petitioner / plaintiff has filed the petition under
Order 26 Rule 9 Civil Procedure Code to appoint an advocate
commissioner to visit the suit property and note down the physical features
instead of filing an application under Order 41 Rule 27 CPC. Further, the
petitioner wanted to assist the Court by stating that there is no pathway to
reach the property on the rear side and only the report of the advocate
commissioner would throw light on the typography on the said land. The
learned counsel would further submit that one more chance may be given
to the petitioner / plaintiff to file a fresh application under the correct
provision.
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C.R.P.No.2293 of 2020 and
C.M.P.No.14370 of 2020
6. Heard the learned counsel for the petitioner and perused the
documents placed on record.
7. For ready reference, Order 41 Rule 27 (1)(b) of the Code of Civil
Procedure Code is quoted herein: -
Order 41 Rule 27 of Code of Civil Procedure :
27. Production of Additional Evidence in Appellate Court
(1) (b) the Appellate Court requires any document to be produced or
any witness to be examined to enable it to pronounce judgment, or for any
other substantial cause, the Appellate Court may allow such evidence or
document to be produced, or witness to be examined.
8. Though this Court is not intending to delve deep into the merits of
the case, this Court is of the view that citing a wrong provision by the
advocate should not cause undue hardship to the client.
9. In any event, the court below after going through all the materials
placed before it, has observed that the petitioner / plaintiff has approached
the said court by filing petition under Order 26 Rule 9 and Section 151 CPC
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without filing any application under Order 41, Rule 27 CPC, hence
considering the facts and circumstances of the case, this Court is not
inclined to interfere with the order and findings of the court below passed in
Unnumbered I.A. /2019 in A.S.No.32 of 2019 dated 06.1.2020. However,
taking note of the fact that the appeal suit is also pending for adjudication,
it is left open to the petitioner to approach the concerned appellate court in
accordance with law.
In the result, the present Civil Revision Petition is dismissed.
Consequently, connected miscellaneous petition is also closed. No costs.
08.01.2021
Index : Yes/No
Internet : Yes/No
Speaking /Non-Speaking Judgment
ssd
To
The learned III Additional District Judge, Salem
https://www.mhc.tn.gov.in/judis/
C.R.P.No.2293 of 2020 and
C.M.P.No.14370 of 2020
V.BHAVANI SUBBAROYAN, J.,
ssd
C.R.P.No.2293 of 2020 and
C.M.P.No.14370 of 2020
08.01.2021
https://www.mhc.tn.gov.in/judis/
