Madras High Court
Janaki vs Sekar on 12 November, 2021
C.R.P.(MD) No.1425 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.11.2021
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) No.1425 of 2021
and
C.M.P.(MD) No.8020 of 2021
Janaki ... Petitioner
vs.
1.Sekar
2.Muthusamy ... Respondents
PRAYER:- This Petition is filed under Section 115 of the Code of Civil
Procedure, to call for the records in pertaining to the fair and decreetal order
dated 06.01.2021 passed by the District Munsif Court, Karur in I.A.No.368 of
2018 in O.S.No.340 of 2017 and set aside the same.
For Petitioner : Mr.T.Vadivelan
For Respondents : Mr.V.Balaj
ORDER
The plaintiff, who is the revision petitioner, is challenging the dismissal
of his application seeking appointment of an Advocate Commissioner to
measure the suit property with the qualified Surveyor and for a direction to
submit the report.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1425 of 2021
2.The brief facts preceding the filing of the above Civil Revision Petition
are herein below set out.
3.The petitioner/plaintiff has filed a suit in O.S.No.340 of 2017 for bare
injunction restraining the defendants, their men, agents, servants and others
from interfering with his peaceful possession and enjoyment of the suit
property.
4.The learned counsel on behalf of the plaintiff would submit that the suit
property, which is a Natham Land, belonged to the plaintiff's grandfather,
namely, N.Karuppannan, who has been in an uninterrupted possession and
enjoyment of the property for over so many years and recognizing the long
possession and enjoyment, the Revenue Authorities had granted patta in the
name of N.Karuppannan under patta No.1707. The said N.Karuppannan had
settled the property on the plaintiff, his granddaughter out of love and affection.
The possession of the property was also handed over to her on the date of
execution of the settlement deed ie., 26.09.2005. Pursuant to this settlement
deed, the plaintiff has been in possession and enjoyment of the property and had
obtained mutation of the revenue records and had also got the property tax,
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1425 of 2021
water tax etc transferred in her name. While so, the defendants who are utter
strangers having no title or interest over the suit property started interfering with
the plaintiff's enjoyment of the same and on 10.08.2017, had illegally trespassed
into the property and threatened the plaintiff. This was, very great difficulty,
averted by the plaintiff. Since the threat of the defendants was a continuing one,
the plaintiff had come forward with the present suit.
5.The defendants had filed a written statement interalia denying the claim
of the plaintiff and stating that incorrect measurements have been given by the
plaintiff. The defendants/respondents had taken a stand that the plaintiff had
raised a compound wall on the Eastern side of the property and the property of
the defendants is situated immediately East of the North-South Tar Road and
East of this property is the property owned by the plaintiff.
6.The defendants would submit that the property owned by them is not a
perfect square and has an uneven measurement. Therefore, while constructing
the property and following Vasthu, the plaintiff had constructed his compound
wall inside his property by leaving a portion of his property outside the
compound wall ie., the defendants had left a vacant space to the East of the
compound wall. This space was being utilized to attend to the white washing
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1425 of 2021
and repairs of the wall. The vacant space measured 1 feet in width at the
Northern end of the compound wall and as it proceeds towards South, the width
of the vacant site increased and at the Southern tip, it measured 5 feet in width.
While putting up the construction, the plaintiff attempted to encroach upon this
place and this was objected to by the defendants and hence, the suit.
7.The defendants would contend that there is no cause of action for filing
the suit.
8.Pending the suit, the plaintiff came forward with the impugned
application. The defendants/respondents had objected to the said petition
interalia contending that in a suit for bare injunction, an application for
appointment of an Advocate Commissioner was unheard-of, so that the plaintiff
cannot use the Advocate Commissioner to gather evidence.
9.The learned Additional District Munsif, Karur, by the order dated
06.01.2021 was pleased to dismiss the said application and challenging the
same, the petitioner is before this Court.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1425 of 2021
10.The learned Judge relying on the judgment of this Court reported in
2012 (5) LW 300 (Santha Satheesh Vs. H.J.Walter and others) held that the
Advocate Commissioner cannot be appointed to gather evidence and further, in
a suit for permanent injunction, the burden of proving possession is exclusively
upon the plaintiff by bringing in cogent evidence to support his claim.
Therefore, the learned Judge had dismissed the application. The said order is the
subject matter of challenge before this Court.
11.The learned counsel appearing on behalf of the petitioner/plaintiff
would rely upon paragraph No.11 of the written statement to state that even
according to the defendants/respondents, this property is not a perfect square
and that the vacant space East of the compound wall also belongs to him. The
learned counsel would therefore submit that there is a necessity to measure the
suit property in order to arrive at a solution for the dispute between the parties.
12.Heard the learned counsel and perused the records.
13.The reasons upon which the impugned petition has been filed are
narrated in paragraph Nos.9 and 10 of the affidavit filed in support of this
petition. It is extracted herein below:-
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1425 of 2021
“9.It is submitted that the suit property is to be measure out by
the qualified surveyor, the dispute between the parties will come to end
and the same will effectively helps this Hon'ble Court to come to
conclusion.
10.By allowing this petition, no prejudice will be caused to
respondents, on the other hand, if the petition is not allowed I will be
put too irreparable loss and hardship which cannot be compensated in
any means.”
14.Reading of the above does not make out any reason except to imply
that by measuring the suit property its identity can be decided which amounts to
gathering evidence. The plaintiff has come forward with the suit for bare
injunction stating that the property belonged to her great grandfather and the
patta had been issued in his favour by the Revenue Authorities. She has
contended that after her grandfather, she has been in possession and enjoyment
of the suit property. Therefore, the burden is on the plaintiff to establish her
pleadings. She cannot seek the assistance of the Advocate Commissioner to
demarcate and identify her property. Further, the suit is one for bare injunction
and as a general rule, an Advocate Commissioner cannot be appointed to note
down the physical features in a suit for bare injunction unless special
circumstances are set out. In the instant case, neither the reading of the affidavit
nor the arguments would set out such special circumstances. Therefore, the
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1425 of 2021
order passed by the learned District Munsif, Karur in I.A.No.368 of 2018 in
O.S.No.340 of 2017 dated 06.01.2021 does not require any reconsideration and
consequently, this Civil Revision Petition stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
Index : Yes / No 12.11.2021
Internet : Yes / No
mm
To
The District Munsif,
Karur.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1425 of 2021
P.T.ASHA, J.
mm
C.R.P.(MD) No.1425 of 2021
12.11.2021
https://www.mhc.tn.gov.in/judis
