Madras High Court
Vasudevan @ Vasu vs Dhanusu on 3 September, 2021
C.R.P.(PD).No.215 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.09.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD).No.215 of 2017
and
C.M.P.No.916 of 2017
1.Vasudevan @ Vasu
2.Balasundaram @ Balachandar .. Petitioners
Vs.
Dhanusu .. Respondent
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and decretal order dated 30.08.2016
made in I.A.No.280 of 2014 in O.S.No.1584 of 2013 on the file of the
Principal District Munsif, Puducherry.
For Petitioners : Ms.Elizabeth Ravi
For Respondent : Mr.R.Thiagrajan
ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
This Civil Revision Petition is filed against the fair and decretal order
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C.R.P.(PD).No.215 of 2017
dated 30.08.2016 made in I.A.No.280 of 2014 in O.S.No.1584 of 2013 on the
file of the Principal District Munsif, Puducherry.
2.The petitioners are the plaintiffs in O.S.No.1584 of 2013 filed against
the respondent / defendant for permanent injunction restraining the respondent,
his men or agents from disturbing the peaceful possession and enjoyment of the
suit property by them. The respondent filed written statement on 03.12.2013
and is contesting the suit. The petitioners filed I.A.No.280 of 2014 under Order
XXVI Rule (9) R/W Section 151 of C.P.C., for appointing an advocate
commissioner directing him to measure the suit property as per the documents
of the parties, identify and mark the same with the assistance of a qualified
Surveyor. According to the petitioners, the respondent and respondent's brother
are owners of adjacent properties and the respondent's brother sold his
property to the petitioners. Now the petitioners and respondent are adjacent
owners. The petitioners are in possession and enjoyment of the suit property.
The respondent in the written statement has stated that extent of the suit
property mentioned in the plaint is not available on land in R.S.No.197/1 and
there is a deficit in the total extent of the suit property. Therefore, there is a
dispute with regard to extent of the suit property as per the documents and
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C.R.P.(PD).No.215 of 2017
availability of the land as on date. This can be decided only by appointment of
advocate commissioner, who can measure the property and identify the
property as per the records. The report of the advocate commissioner will
avoid multiplicity of proceedings and prayed for appointment of advocate
commissioner. The respondent filed counter affidavit and denied all the
averments made by the petitioners. The respondent stated that the petitioners
have stated in the plaint that the respondent and his brother objected for
measuring of the property and suit property could not be identified. In view of
the said submission, the suit for bare injunction is not maintainable. In the
written statement itself the respondent has stated that there is a deficit in extent
in the suit property. The petitioners have admitted in the suit notice as well as
in the plaint that suit property could not be identified. The petitioners filed the
present I.A. only to collect the evidence, which is not maintainable. The
petitioners filed the present I.A. after 1 ½ years when the suit was posted for
trial and prayed for dismissal of the I.A.
3.The learned Judge considering the averments in the affidavit, counter
affidavit and judgments relied on by the learned counsel appearing for the
petitioners and respondent, dismissed the I.A.
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C.R.P.(PD).No.215 of 2017
4.Against the said order of dismissal dated 30.08.2016 made in
I.A.No.280 of 2014, the petitioners have come out with the present Civil
Revision Petition.
5.The learned counsel appearing for the petitioners submitted that the
learned Judge failed to see that there is no dispute with regard to title of the
property. Admittedly the petitioners, the respondent and respondent's brother
are beneficiaries under the will dated 11.09.1989 executed by the deceased
L.Gopal Gounder. The learned Judge failed to see that title of the petitioners is
admitted by the respondent himself. Once title is admitted, the land being
vacant land, the principle that possession follows the title has to be applied.
The learned Judge erroneously proceeded on the ground that petitioners are
making attempt to collect the evidence and its failure to make a distinction
between the identification of the property with reference to collection of
evidence, there is no need or necessity whatsoever to collect any evidence, as
both the parties are claiming as beneficiaries under the Will dated 11.09.1989.
The respondent is entitled to 'A' Schedule property, whereas, the petitioners are
entitled to 'B' Schedule property. The learned Judge failed to consider the case
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C.R.P.(PD).No.215 of 2017
of the petitioners and judgments relied on by the counsel and erroneously
dismissed the I.A. and prayed for allowing the I.A. and also for allowing the
Civil Revision Petition.
6.The learned counsel appearing for the respondent submitted that the
learned Judge has considered all the materials placed before him in proper
perspective and exercising his jurisdiction conferred on him, has dismissed the
I.A by giving cogent and valid reason. There is no error in the said order of the
learned Judge warranting interference by this Court and prayed for dismissal of
the Civil Revision Petition.
7.Heard the learned counsel appearing for the petitioners as well as the
learned counsel appearing for the respondent and perused the entire materials
on record.
8.From the materials available on record, it is seen that it is the case of
the petitioners that they are in possession and enjoyment of the suit property
and respondent is now and then trying to interfere with their possession. On
these averments and allegations, the petitioners filed suit in O.S.No.1584 of
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C.R.P.(PD).No.215 of 2017
2013 for permanent injunction restraining the respondent, his men or agents
from interfering with the peaceful possession and enjoyment of the suit
property by them. When the petitioners filed suit for permanent injunction
restraining the respondent from interfering with their possession, it is for the
petitioners to prove their possession of the suit property and interference of the
respondent. In the present case, the respondent has taken a stand that extent of
the property as marked in the document is not available and petitioners
themselves have admitted that suit property is not identified. On these facts, it
is for the petitioners to prove their possession and enjoyment by letting in
acceptable oral and documentary evidence. In a suit for bare injunction,
petitioners cannot seek for appointment of advocate commissioner to measure
and identify the suit property. The learned Judge appreciating the above facts
and judgments relied on by the learned counsel for the petitioners and
respondent properly, dismissed the I.A. There is no error in the order of the
learned Judge warranting interference by this Court.
9.In the result, this Civil Revision Petition stands dismissed.
Consequently, the connected Miscellaneous Petition is closed. No costs.
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C.R.P.(PD).No.215 of 2017
03.09.2021
krk
Index : Yes / No
Internet : Yes / No
To
The Learned Principal District Munsif,
Puducherry.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD).No.215 of 2017
V.M.VELUMANI, J.
krk
C.R.P.(PD).No.215 of 2017
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD).No.215 of 2017
03.09.2021
https://www.mhc.tn.gov.in/judis/
