Madras High Court
The Commissioner vs S.Ayeesha Ammal ... 1St on 9 November, 2021
C.R.P(PD)(MD) No.1711 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.11.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(PD)(MD)No.1711 of 2021
and
C.M.P(MD) No.9164 of 2021
The Commissioner,
Municipal Office,
Ramanathapuram ... Petitioner/3rd Respondent/
3rd Defendant
Vs.
1.S.Ayeesha Ammal ... 1st Respondent/
Petitioner/plaintiff
2.The Tashidar
Ramanathapuram Taluk,
Ramanathapuram.
3.The State of Tamil Nadu,
Represented by its District Collector,
Ramanathapuram. ... Respondent No.2 & 3/
Respondents 1 & 2 / Defendants 1 & 2
PRAYER:- Civil Revision Petition filed under Article 227 of
Constitution of India, to revise and set aside the fair and executable order
passed in I.A.No.51 of 2019 in O.S.No.144 of 2014 dated 04.02.2021 on
the file of the District Munsif Court, Ramanthapuram.
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C.R.P(PD)(MD) No.1711 of 2021
For Petitioner : Mr.A.Kanan
For Respondents 2 & 3 : Mr.K.S.Selvaganesh
ORDER
The third defendant is before this Court invoking the
superintending jurisdiction of this Court under Article 227 of
Constitution of India challenging the order passed in I.A.No.51 of 2019
in O.S.No.144 of 2014 by the District Munsif, Ramanathapuram. The
impugned order relates to the appointment of an Advocate Commissioner
to note down the physical features of the suit schedule property and
prepare a plan thereto.
2.The facts in brief necessary for disposing of the civil revision
petition is herein below narrated:-
2.1.The first respondent/plaintiff had filed a suit in O.S.No.144 of
2014 seeking a bare injunction restraining the revision petitioner/
3rd defendant and respondents 2 and 3/the defendants 1 and 2 from
obstructing the peaceful possession and enjoyment of the suit property by
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C.R.P(PD)(MD) No.1711 of 2021
the plaintiff. The plaintiff would contend that the suit property and the
area surrounding it, originally belonged to the Maharani of
Ramanathapuram Srimathi D.Indiradevi and her minor children. By a
registered sale deed dated 03.03.1984, the plaintiff had purchased the
property to an extent of 8065 sq fts, which is equal to an extent of
18.5 cents, for a valuable consideration from the Maharani,.
2.2.On her purchase, the plaintiff had put up a compound wall on
all four sides after getting necessary permission from the Municipality.
Thereafter, under the Updating Registry Scheme, the plaintiff was
granted joint patta along with R.Chidambaranathadurai by the order of
the Tashdilar dated 24.02.1986. The order dated 03.12.1991 of the
District Revenue Officer, Ramanathapuram, instead of showing an extent
of 18 ½ cents as belonging to the plaintiff in Survey No.317/1, T.S.No.
19, showed the total extent as 10 ½ cents. The order dated 03.12.1991
was totally erroneous, since the plaintiff has put up the compound wall as
per the patta granted to her in the year 1984 and in enjoyment of an
extent of 18 ½ cents.
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C.R.P(PD)(MD) No.1711 of 2021
2.3.The plaintiff would further submit that after getting due
approval, she had constructed a lodge in the name and style of
S.A.Lodge in the said property. To the east-west of the suit property, the
land of the Rajaram is situated. While so, on 23.08.2014, the third
defendant came to the suit property and threatened the plaintiff that he
would demolish the compound wall, with a very great difficulty, the
plaintiff prevented such an action. However, the third defendant had
gone back threatening to do so. Since the third defendant is continuing
with the threat, the plaintiff is left with no other alternative, except to
approach this Court.
2.4.The written statement was filed by the petitioner, in which the
third defendant would deny the claim of the plaintiff. The third
defendant feigned ignorance about the earlier orders passed by the
Revenue Authorities in the year 1984 as well as in the year 1991. The
third defendant would further submit that the plaintiff has not challenged
the order passed by the District Revenue Officer reducing her enjoyment
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C.R.P(PD)(MD) No.1711 of 2021
to an extent of 10 ½ cents and contended that this order has not been
challenged by the plaintiff. The plaintiff had also obtained an interim
order of injunction despite which the third defendant attempted once
again to demolish the compound wall constraining the plaintiff to file
writ appeal in W.A.No.1116 of 1999. The writ appeal was disposed of
on 18.01.2005 stating that the appellant namely the plaintiff had to
approach the Civil Court. The defendant would further contend that
although such a direction was given, the plaintiff had not moved any
application and therefore, the suit filed without seeking the relief of
declaration of title, was not maintainable and it is liable to be dismissed.
2.5.Since the petitioner was insistent on denying the right of the
plaintiff to the property and also contending that the plaintiff was only
entitled to an extent of 10.05 cents and the remaining land was the
panchayat board land and Mangammal Chathiram Poramboke etc, the
plaintiff had filed I.A.No.51 of 2019 seeking for appointment of
Advocate Commissioner to inspect the suit property, note down its
physical features and submit a report along with the plan.
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C.R.P(PD)(MD) No.1711 of 2021
2.6.The petitioner herein had resisted the same by inter alia
contending that in a suit for bare injunction, appointment of an Advocate
Commissioner was anathema and that the plaintiff cannot use Advocate
Commissioner to collect the evidence on their behalf.
2.7.The learned District Munsif, Ramanathapuram, on considering
the petition and arguments of both sides, allowed the application. The
learned District Munsif was compelled into allowing the application,
since the plaintiff had contended that she was in enjoyment of an extent
of 18.05 cents which was totally surrounded by the compound wall with
the lodge running therein, whereas the defendant would submit that only
an extent of 10.05 cents was in their enjoyment with the rest of the land
being the land of the Panchayat board and the Mangamal Chathiram
poramboke. Challenging the said order, the petitioner is before this
Court.
3.When the matter was listed for admission Mr.A.Kannan, learned
counsel appearing on behalf of the petitioner, would vehemently contend
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C.R.P(PD)(MD) No.1711 of 2021
that there cannot be an Advocate Commissioner appointed to collect the
evidence on behalf of the plaintiff. The plaintiff has to succeed or loose
only on the basis of the documents submitted by her. He would further
submit that the plaintiff was only in enjoyment of an extent of 10.05
cents and that there was no compound wall around the property as the
same has already been demolished. He would rely upon the judgment of
this Court reported in (2006) 5 CTC 178 reported as T.K.Krishnamurthy
vs Tamil Nadu Water and Drainage Board in support of his arguments
that the Advocate Commissioner's report alone can never be the basis for
deciding the suit and the Commissioner should not be appointed to
gather evidence to prove the case of the parties. The other judgment
which has been relied upon by the learned counsel is the judgment
reported in (2020) 206 AIC 697 reported as S.Anand and others vs
A.Jeyabalan and others. This judgment was also relied upon for the
very same proposition that the Commissioner cannot be appointed to find
out as to who is in possession of the property and also to collect
evidence.
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C.R.P(PD)(MD) No.1711 of 2021
4.Heard the learned counsel appearing for the petitioner and the
learned counsel appearing for the respondents 2 and 3 and also perused
the records.
5.The first respondent has come forward with the case that the suit
property had been purchased by her in the year 1984 and in the very
same year she had put up a compound wall after obtaining necessary
permission and approval. She would submit that though she had been
granted permission to put up the compound wall around an extent of
8065 sq.fts, however in the Updating Registry Scheme, there appears to
be an anomaly in the extent shown as belonging to the first respondent.
The petitioner is trying to take advantage of this and in the process, he
has been interfering with her peaceful possession of the suit property.
The first respondent has sought to appoint the Advocate Commissioner,
since the petitioner has taken a defence that the suit property is not
surrounded by the compound wall as the same has been demolished and
that within this extent of 8065 sq.fts Mangammal Chathiram Poramboke
and the Panchayat Board lands were situated. The existence or otherwise
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C.R.P(PD)(MD) No.1711 of 2021
of the compound wall can be verified by the Advocate Commissioner.
The case of the plaintiff is that she is in enjoyment of the suit property
which is surrounded by a compound wall. Therefore, the appointment of
an Advocate Commissioner appears would to a very great extent help the
Court is understanding the contentions of either side.
6.Even in the judgments relied upon by the petitioner particularly
the judgment reported in (2020) 206 AIC 697, the learned Judge had
opined that even in a suit for bare injunction, an advocate commissioner
can be appointed as there is no complete bar for a Court to appoint an
Advocate Commissioner, but such an appointment can be only in cases
where it is necessary to localise the property, when there is a dispute
regarding boundaries or there is an attempt made to alter the physical
features. In the instant case, though the first respondent would contend
that the entire suit property is surrounded by the compound wall and
there is an extent of 8065 sq.fts (18.05 cents) within the compounded
area, the petitioner would contend that there is no compound wall and
that the first respondent is only enjoyment of 10 ½ cents of land.
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C.R.P(PD)(MD) No.1711 of 2021
7.Therefore, I do not find any reason to interfere with the order of
the learned District Munsif, Ramanathapuram. Accordingly, this Civil
Revision Petition is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
09.11.2021
Index:Yes/No
Internet:Yes/No
cp
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:-
The District Munsif,
Ramanthapuram.
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https://www.mhc.tn.gov.in/judis
C.R.P(PD)(MD) No.1711 of 2021
P.T.ASHA, J.
cp
C.R.P(MD)No.1711 of 2021
and
C.M.P(MD) No.9164 of 2021
09.11.2021
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https://www.mhc.tn.gov.in/judis
