Manikam vs Ravi
2021 Latest Caselaw 5559 Mad

                                                                  1

                              BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    Date :03.03.2021

                                                            CORAM :

                                    THE HONOURABLE MRS.JUSTICE J.NISHA BANU

                                               CRP(NPD)(MD)No.1059 of 2019
                                                          and
                                                 CMP(MD).No.5772 of 2019


                     1.Manikam
                     2.Prakash                      ...

                                                    Petitioners/Petitioners/Plaintiffs


                                                              Vs


                     Ravi                                   ...

                                                    Respondent/Respondent/Defendant


                     PRAYER: This Civil Revision Petition has been filed
                     under Article 227                 of the Constitution of India to
                     call          for    records      pertaining         to   the    order    dated
                     22.03.2019 made in I.A.No.2 of 2019 in O.S.No.599 of
                     2014          on    the    file   of    the        District     Munsif   Court,
                     Lalgudi and set aside the same.


                                         For Petitioners              : Mr.T.Vadivelan
                                         For respondent               : Mr.A.Arumugam

                                                             *****



https://www.mhc.tn.gov.in/judis/
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                                                            O R D E R

This Civil Revision Petition has been filed

under Article 227 of the Constitution of India to

call for records pertaining to the order dated

22.03.2019 made in I.A.No.2 of 2019 in O.S.No.599 of

2014 on the file of the District Munsif Court,

Lalgudi and set aside the same.

2. The petitioners would aver among other

things that they instituted a suit in O.S.No.599 of

2014 for permanent injunction against the respondent

herein on the file of the District Munsif Court,

Lalgudi and obtained an order of interim injunction

vide I.A.No.595 of 2014, on 27.11.2016, pending

disposal of the suit. While so, it is alleged that

the respondent herein had encroached upon certain

portion of land belonging to the petitioners herein.

To find out the encroached land, the petitioners

moved an application vide I.A.No.2 of 2019 in O.S.No.

599 of 2014 on the file of the District Munsif Court,

Lalgudi, for appointment of advocate commissioner

with the aid of Surveyor, which was opposed by the

respondent herein. The court below, after hearing https://www.mhc.tn.gov.in/judis/

both sides, had dismissed the application, which is

impugned in the present Civil Revision Petition.

3. The learned counsel for the petitioner

would contend that it is mandate on the part of the

trial Court to appoint an advocate commissioner along

with Surveyor to note down the physical features by

taking into account the possession held by the

petitioners herein. The impugned order is

mechanically passed without applying the legal

principles as held in the case of Maruthai Nattar

and others Vs Ayyavu and others, reported in (2018)

5 MLJ 447.

4. Per contra, learned counsel for the

respondent would contend that there is no justifiable

reason adduced in support of seeking appointment of

Advocate Commissioner on the strength of alleged

possession claimed to be held by the petitioner. The

attempt of the petitioners is nothing but to seek

evidence through the appointment of Advocate

Commissioner, which the petitioner is not entitled to

legally and sought for dismissal of the application. https://www.mhc.tn.gov.in/judis/

5. Heard the learned counsel for the

petitioners and perused the materials available on

record.

6. Admittedly, the present petition for

appointment of an advocate commissioner was filed by

the petitioners to measure the land in question on

the basis of the possession held by them. The Court

below had dismissed the application on the ground

that the petitioners did not file any title or

revenue document to sustain their claim. In the

considered view of this Court, the Court below has

rightly dismissed the application for appointing the

Advocate Commissioner since the petitioners failed to

produce any documents justifying his claim to measure

the land in question. The learned counsel for the

petitioners relied on the judgement cited supra, to

say that an advocate commissioner is necessary to

measure the land in question, wherein, he failed to

note that in paragraph No.3 of the judgment cited

supra, the petitioners therein derived their title

through valid legal documents, therefore, this Court

thought it fit to direct the Advocate Commissioner to https://www.mhc.tn.gov.in/judis/

measure the land in question therein. In the present

case on hand, the learned Judge has dismissed the

application finding that the petitioner does not

possess any document under which he claims to measure

the property and to conduct survey except to state

that he seeks for the same based on possession.

Taking note of the above aspects, the Court below had

come to the conclusion that the petitioners are not

entitled for the relief sought for and the

interference of this Court is not necessary.

7. Accordingly, this Civil Revision Petition

stands dismissed. Consequently, connected

miscellaneous petition is closed. However, there

will be no order as to costs.

03.03.2021

Index : Yes/No Internet: Yes/No bala

https://www.mhc.tn.gov.in/judis/

J.NISHA BANU, J

bala To

The District Munsif Court, Lalgudi

Copy to:-

The Section Officer, V.R.Records, Madurai Bench of Madras High Court. Madurai.

ORDER MADE IN CRP(NPD)(MD)No.1059 of 2019 DATED : 03.03.2021

https://www.mhc.tn.gov.in/judis/