Madras High Court
M.Punniyamoorthy vs Natarajan (Died) on 11 June, 2021
C.R.P.(MD)No.889 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.06.2021
CORAM :
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
C.R.P.(MD)No.889 of 2021
and C.M.P.(MD)No.4872 of 2021
(Through Video Conference)
M.Punniyamoorthy ... Petitioner
Vs.
1. Natarajan (Died)
2. K.Swaminathan
3. G.Duraisingam
4. N.Udayappan
5. Thanjavur Corporation
Represented by its Commissioner,
Having Office at: Gandhi Road,
Thanjavur Town.
6. The Town Surveyor No.2,
Thanjavur, Having office at: Gandhi Road,
Thanjavur Town,
7. Sundarambal
8. Sasikala
9. Appu @ Subramanian ... Respondents
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C.R.P.(MD)No.889 of 2021
PRAYER: Petition filed under Article 227 of the Constitution of India
praying to allow this Revision Petition, set aside the order and decreetal
order passed by the II Additional District and Sessions judge, Thanjavur
in I.A.No.16 of 2019 in A.S.No.27 of 2016, dated 09.02.2021.
For Petitioner : Mr.P.Vadivel
For RR 7 & 8 : Mr.Niranjan S.Kumar
******
ORDER
Heard the learned counsel on either side.
2. The first defendant in O.S.No.137 of 2012 on the file of learned
Principal Sub-Ordinate Judge, Thanjavur, is the revision petitioner
herein. The said suit was instituted by one Natarajan seeking reliefs of
declaration and permanent injunction. The suit was partly decreed vide
judgment and decree dated 12.04.2016. Aggrieved by the same, both the
Plaintiff as well as this Revision Petitioner preferred independent
Appeals. The Revision Petitioner herein filed A.S.No.27 of 2016 before
the District Court which is presently pending before II Additional District
and Sessions Judge, Thanjavur. In the said Appeal, the Petitioner herein
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C.R.P.(MD)No.889 of 2021
filed I.A.No.16 of 2019 for appointing an Advocate Commissioner for
the purpose of visiting the suit properties with the help of Surveyor to
correlate the properties mentioned in Ex.A1 partition deed and file a
report as to whom the “A” schedule property in the said partition deed
Ex.A1 was allotted The said interlocutory application was dismissed by
the impugned order, dated 09.02.2021 by the first Appellate Court.
Questioning the same, this Revision Petition has been filed.
3. The learned counsel appearing for the Revision Petitioner
reiterated all the contentions set out in the memorandum of grounds. He
also placed reliance on the decisions in the case of P.Sangili and others
vs. Ramakrishnan and others reported in 1974 (1) MadLJ 87 and in the
case of K.R.Kamalraj vs. C.Sridharan reported in 2021 (2 ) CTC 650 in
support of his contentions.
4. I am not persuaded by the submissions of the learned counsel
appearing for the Revision Petitioner. As rightly pointed out by the
learned counsel appearing for the contesting respondents, the petitioner
herein had filed an Interlocutory Application (I.A.) before the Trial Court
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C.R.P.(MD)No.889 of 2021
seeking for appointing an Advocate Commissioner. The said I.A. was
allowed and the Advocate Commissioner visited the suit property and
measured the same with the assistance of a Surveyor with reference to
Ex.A1, and also filed his report. If according to the petitioner herein, the
Advocate Commissioner failed to correlate as to whom the “A” schedule
property of Ex.A1 was allotted, he ought to have filed his objections and
sought re-issue of the warrant. He had failed to do so. Of course, there is
no bar against the maintainability of the application filed by the Revision
Petitioner. But, the question is whether the Court below was justified in
dismissing the same. In paragraph no.9 of the impugned order, the first
Appellate Court has stated as follows:
“(9) Considering the both side arguments, it is found that
both parties admitted the Ex.A1 partition deed, that the
division of portion for common enjoyment have been
earmarked based upon the portions and compartments of
the house properties available at the time of division. The
respondent contended that subsequent to the Advocate
Commissioner's visit of the suit properties the petitioner
completely demolished a house property comprised in
T.S.No.1992. This contention was not denied by the
petitioner. Therefore, this Court accepts the arguments of
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C.R.P.(MD)No.889 of 2021
the respondents that correlation of the suit properties with
the details mentioned in the Ex.A.1. partition deed is not
possible. The petitioner has not assigned any reason for
not requesting in the lower court that the suit property
should be measured in comparison with the details found
in the partition deed. Therefore, this court views that
appoint of Advocate Commissioner at this stage is
unnecessarily prolonged the legal proceedings. Moreover,
the petitioner has to prove his claim on the basis of his
vendor's title deed. Therefore, this court finds that the
petitioner has to prove his case by the oral and
documentary evidence already filed during the trial. He
cannot collect evidence through the appointment of
Advocate Commissioner Therefore, this Court finds no
valid reasons to appoint the Advocate Commissioner., So,
this court decided that this petition is not liable to be
allowed. The point is answered accordingly. ”
5. Though the Appeal was filed way back in 2016, the application
was filed only when the First Appeal was posted for final disposal. Of
course, the learned counsel for the Revision Petitioner would state that
the office of the presiding Judge of the first Appellate Court was vacant
but that is not a ground for filing such an application when the Appeal
itself was listed for final disposal.
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C.R.P.(MD)No.889 of 2021
6. I remind myself that I am only exercising jurisdiction under
Article 227 of the Constitution of India and that, only if the order passed
by the Court below is shown to be perverse or illegal, I can interfere. A
case for interference under Article 227 of the Constitution of India has
not been made out. Therefore, finding no ground to interfere, this Civil
Revision Petition is dismissed. No costs. Consequently, connected C.M.P.
(MD)No.4872 of 2021 is closed.
11.06.2021
Index : Yes / No
Internet : Yes
sts
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
1. The II Additional District and Sessions Judge, Thanjavur.
2. The Record Keeper, Madurai Bench of Madras High Court,
Madurai.
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C.R.P.(MD)No.889 of 2021
G.R.SWAMINATHAN, J.
sts
Order made in
C.R.P.(MD)No.889 of 2021
Dated:
11.06.2021
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