Madras High Court
Madhesan vs Vijaya on 25 June, 2021
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.06.2021
CORAM
THE HON'BLE MR. JUSTICE A.D. JAGADISH CHANDIRA
C.R.P. (PD) No. 3633 of 2016
and
C.R.P. (NPD) No. 605 of 2021
and
C.M.P. No. 18523 of 2016
and
C.M.P. No. 5221 of 2021
C.R.P. (PD) No. 3633 of 2016:-
Madhesan ... Petitioner
-vs-
1. Vijaya
2. Chinnapillai
3. Pachamuthu ... Respondents
Prayer:- Civil Revision Petition filed under Article 227 of the Constitution of
India, 1950, praying to set aside the fair and decretal order dated 12.10.2015
passed in I.A. No. 715 of 1997 in O.S. No. 134 of 1984 on the file of the
District Munsif Court, Mettur.
For Petitioner : Mr. P.Mathivanan
For Respondents : Mr. A.Sundaravadanan (for R1)
No appearance (for R2 & R3)
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
C.R.P. (NPD) No. 605 of 2021:-
Madhesan ... Petitioner
-vs-
1. Vijaya
2. Pachamuthu
3. Vijaya
4. Rangasamy
5. Padma
6. Rani
7. Latha
8. Sudha ... Respondents
Prayer:- Civil Revision Petition filed under Article 227 of the Constitution of
India, 1950, praying to set aside the fair and decretal order dated 12.10.2015
passed in I.A. No. 715 of 1997 in O.S. No. 134 of 1984 on the file of the
District Munsif Court, Mettur.
For Petitioner : Mr. P.Mathivanan
For Respondents : Mr. A.Sundaravadanan (for R1)
R2 to R8 set ex-parte vide verified petition
S.R. No. 31411 of 2021 dated 19.03.2021.
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
COMMON ORDER
(The case has been heard through video conference)
By consent of both parties, the Civil Revision Petition has been taken up
for final disposal.
2. Brief facts of the case:-
The suit in O.S. No. 134 of 1984 on the file of the Learned District
Munsif Court, Mettur, was instituted by one Poochiammal against one
Pakkukara Pachiammal for partition of the suit scheduled properties owned by
one Mari Gounder. The said Mari Gounder had two wives, viz., Poochiammal
and Chinnu @ Vauriammal. The Plaintiff is the daughter of the said
Poochiammal and the Defendants are the daughters of the said Chinnu @
Vauriammal. The Defendants had filed their written statement and contested the
suit. During the pendency of the suit, the original Plaintiff had passed away and
her legal heir was brought on record. The suit was decreed on 19.10.1994
directing the Defendants to divide the suit property into three equal shares and
allot one such share to the Plaintiff. Subsequent to the death of the First
Defendant, the share had been enhanced to ½ share. The Plaintiff had filed an
application in I.A. No. 715 of 1997 for appointment of Advocate Commissioner
to divide the suit properties into two equal shares. The Respondents had filed
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
their counter and contested the same. The Trial Court after enquiry, appointed
one Mr. P.Soundaram as the Advocate Commissioner for division of the suit
scheduled properties into two equal shares. Against the appointment of the
Advocate Commissioner, the Petitioner/Third Defendant had filed C.R.P. (PD)
No. 2866 of 1998 before this Court, which was dismissed by order dated
13.02.2008 confirming the order passed by the Trial Court. After the dismissal
of that Civil Revision Petition, Mr. P.Soundaram, Advocate Commissioner had
filed a memo before the Trial Court in I.A. No. 715 of 1997 stating that the
parties to the suit are not co-operating and hence, he had surrendered the
warrant by memo dated 31.09.2009. Subsequently, Mr. P. Soundaram had also
passed away. Thereafter, the Trial Court by order dated 12.10.2015, appointed
one Mr. M.Kumaraswamy as the Advocate Commissioner with a specific
direction to divide the suit scheduled properties into two equal share and
provide pathway and water usage right in the land and allot one such share to
the Plaintiff/First Respondent. Aggrieved over that order, the present Civil
Revision Petition in C.R.P. (PD) No. 3633 of 2016 has been filed by the
Petitioner/Third Defendant. Meanwhile, the Advocate Commissioner had
visited the suit property after issuing notice to the parties to the suit and their
respective Counsels and he has filed a report dated 29.04.2016. The
Petitioner/Third Defendant had filed objection to the report of the Advocate
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
Commissioner, stating that the Advocate Commissioner had visited the
property in the absence of his Counsel and that the Advocate Commissioner
being the owner of the adjacent land acted in favour of one Ganesan who is a
third party to the suit. Further, it is stated that the boundaries had not been
identified by fixing survey stones. It was also averred that the Advocate
Commissioner failed to note that there is pathway for the property which has
not been referred to in the report. Thereafter, the Petitioner/Third Defendant
had filed I.A. No. 711 of 2016 under Section 151 of the Code of Civil
Procedure, 1908, before the Trial Court praying to scrap the report of the
Advocate Commissioner and appoint new Advocate Commissioner. The Trial
Court by order dated 03.12.2020 had dismissed the same. Aggrieved by the
same, the present Civil Revision Petition in C.R.P. (NPD) No. 605 of 2021 has
been filed.
3. Mr. P.Mathivanan, Learned Counsel for the Petitioner would submit
that the Petitioner herein is the legal heir of one Chinnapillai and during the
pendency of the proceedings his aunt, viz., Pakkukara Pachiammal, executed a
will dated 31.10.1983 bequeathing her property in favour of the
Petitioner/Third Defendant and thereby, the Petitioner/Third Defendant became
entitled to 2/3 share in the suit scheduled properties. He would further submit
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
that during the course of the trial, the Petitioner had marked the will as Exhibit
R-9, whereas the Trial Court has not rendered any finding with regard to the
same. He would further submit that the Plaintiff has filed I.A. No. 715 of 1997
for appointment of Advocate Commissioner to divide the land into two equal
shares. He would further submit that though the Plaintiff is entitled to only 1/3
share of the suit schedule property, the Trial Court directed the Advocate
Commissioner to divide the suit schedule property into two equal share and
allot one such share to the Petitioner/Third Defendant against which the
Petitioner has filed C.R.P. (PD) No. 3633 of 2016. He would further submit that
the suit schedule property consists of rocky area in between. He would further
submit that the Trial Court had directed the Advocate Commissioner to find out
the extent of rocky area available in the suit schedule properties and also to find
out pathway and waterway with regard to the suit schedule properties, whereas
the Advocate Commissioner's Report is silent on that aspect. He would further
submit that the Petitioner has filed his objection to the Advocate
Commissioner's Report and filed I.A. No. 711 of 2016 to scrap the Advocate
Commissioner's Report and appoint new Advocate Commissioner on the
ground that the Advocate Commissioner was interested on the other side and
that he is also the owner of the adjacent land and thereby, he had acted with
motives for the interest of some third parties.
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
4. Per contra, the Learned Counsel for the First Respondent/Plaintiff
would submit that the suit is of the year 1984 and the Petitioner/Third
Defendant had been repeatedly filing petitions after petitions to cause
harassment to prevent the Respondents from getting the share and enjoying it.
He would further submit that earlier, the Trial Court had appointed one
Mr. P.Soundaram as the Advocate Commissioner for division of the suit
schedule properties into two equal shares and challenging the same, the
Petitioner has filed C.R.P. (PD) No. 2866 of 1988 before this Court, which was
dismissed by order dated 13.02.2008 confirming the order of the Trial Court.
He would further submit that the Trial Court finding that the order of dismissal
passed by this Court has not been challenged and thereby, taken a view that the
order of the Trial Court has been confirmed. He would further submit that the
earlier dismissal order dated 13.02.2008 in C.R.P. (PD) No. 2866 of 1998
passed by this Court has been referred in the order of the Trial Court and that is
the reason why the Trial Court has not gone into that aspect. He would further
submit that the Trial Court cannot go into the merits of the matter which has
already been adjudicated, finalized and confirmed by this Court in the Civil
Revision Petition, whereas in respect of other averments against the Advocate
Commissioner, the Trial Court had rendered a categoric finding that the
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
Advocate Commissioner had issued proper notice to the parties and only after
notice to the parties, inspection was conducted and the properties were
partitioned accordingly. He would further submit that since there is no pathway
and waterway to the entire property, the Advocate Commissioner had not
marked the same. He would further submit that the Advocate Commissioner
had made a mention about the rocky area at paragraph no. 7 of his report and he
had stated that the rocky area is in the center of the suit scheduled properties
equally divided between two portions one on the North and another on the
South and thereby, he had split up the same. However, he would further submit
that since the Advocate Commissioner has specifically stated that there is no
well or other water body found in the suit scheduled properties, he had not
made any mention about the same. He would further submit that since the suit
scheduled properties does not have access from any side, he was unable to
show the pathway. He would further submit that the Trial Court had rightly
taken into consideration the Advocate Commissioner's Report and refused to
scrap the same. He would further submit that there is no infirmity in the order
passed by the Trial Court. He would reiterate that the case is of the year 1984
and that the Petitioner had been filing petitions after petitions to deny the
partition to the Respondent and thereby, he would seek to dismiss the Civil
Revision Petition.
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
5. Heard the Learned Counsels and perused the Advocate
Commissioner's Report dated 29.04.2016.
6. The suit is of the year 1984. The suit was decreed on 19.10.1984
granting 1/3 share each to the Plaintiff and the Defendants and subsequent to
the death of the First Defendant, the share had been enhanced to 1/2 share each
to the Plaintiff and the Second Defendant. Subsequently, the Plaintiff had filed
an application in I.A. No. 715 of 1997 for appointment of Advocate
Commissioner to divide the suit scheduled properties into two equal shares.
The Defendants had filed counter and contested the same and the Trial Court
had appointed one Mr. P.Soundaram as the Advocate Commissioner for
division of the suit properties into two equal shares. Against the appointment of
the Advocate Commissioner, the Petitioner/Third Defendant had filed C.R.P.
(PD) No. 2866 of 1998 before this Court, which was dismissed by order dated
13.02.2008 confirming the order passed by the Trial Court. After the dismissal
of that Civil Revision Petition, Mr. P.Soundaram, Advocate Commissioner had
filed a memo before the Trial Court in I.A. No. 715 of 1997 stating that the
parties to the suit are not co-operating and hence, he had surrendered the
warrant by memo dated 31.09.2009. Subsequently, Mr. P. Soundaram had also
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
passed away after few hearings of the case. Therefore, the Trial Court by order
dated 12.10.2015 appointed one Mr. M.Kumaraswamy as the Advocate
Commissioner with a specific direction to divide the suit scheduled properties
into two equal share and provide pathway and water usage right in the land and
allot one such share to the Plaintiff. Aggrieved against that order, the present
Civil Revision Petition in C.R.P. (PD) No. 3633 of 2016 has been filed by the
Petitioner/Third Defendant. It is pertinent to mention that in respect of division
of suit scheduled properties into two equal share by the Advocate
Commissioner, the Petitioner had earlier approached this Court in C.R.P. (PD)
No. 2866 of 1998 which has been dismissed by order dated 13.02.2008.
Therefore, the present Civil Revision Petition in C.R.P. (PD) No. 3633 of 2016
will amount to second Civil Revision Petition in respect of the very same issue
and cause of action. The principle of res judicata applies when a litigant
attempts to file a subsequent suit on the same matter, after having received a
judgment in a previous case involving the same parties. Since the relief sought
for by the Petitioner in C.R.P. (PD) No. 3633 of 2016 has been already
considered and decided by this Court in C.R.P. (PD) No. 2866 of 1998, C.R.P.
(PD) No. 3633 of 2016 could not be entertained.
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
7. Subsequent to the filing of C.R.P. (PD) No. 3633 of 2016, the
Advocate Commissioner had visited the suit property after issuing notice to the
parties to the suit and their respective Counsels and he had filed a report dated
29.04.2016. The Petitioner/Third Defendant had filed objection to the report of
the Advocate Commissioner, stating that the Advocate Commissioner had
visited the property in the absence of his Counsel and that the Advocate
Commissioner being the owner of the adjacent land acted in favour of one
Ganesan who is a third party to the suit. Further, it is stated that the boundaries
had not been identified by fixing survey stones. It was also averred that the
Advocate Commissioner failed to note that there is pathway for the property
which has not been referred to in the report. Thereafter, the Petitioner/Third
Defendant had filed I.A. No. 711 of 2016 under Section 151 of the Code of
Civil Procedure, 1908, before the Trial Court praying to scrap the report of the
Advocate Commissioner and appoint new Advocate Commissioner. The Trial
Court by order dated 03.12.2020 had dismissed the same. Aggrieved by the
same, the present Civil Revision Petition in C.R.P. (NPD) No. 605 of 2021 has
been filed. This Court is of the view that that there is no infirmity in the
Advocate Commissioner's Report and that the objection of the Petitioner to the
Advocate Commissioner's Report and the allegations of bias have been duly
considered by the Trial Court.
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
8. In view of the above discussion, the order dated 12.10.2015 in I.A.
No. 715 of 1997 in O.S. No. 134 of 1984 and the order dated 03.12.2020 in I.A.
No. 711 of 2016 in I.A. No. 715 of 1997 in O.S. No. 134 of 1984 is confirmed
and the Civil Revision Petitions are dismissed. Consequently, the connected
Miscellaneous Petitions are closed. No costs.
25.06.2021
vjt
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
To
1. The District Munsif Court,
Mettur.
https://www.mhc.tn.gov.in/judis/
C.R.P. (PD) No. 3633 of 2016 and C.R.P. (NPD) No. 605 of 2021
A.D. JAGADISH CHANDIRA, J.
vjt
C.R.P. (PD) No. 3633 of 2016
and
C.R.P. (NPD) No. 605 of 2021
25.06.2021
https://www.mhc.tn.gov.in/judis/
