Madras High Court
Seenu @ Ramadass vs S.Palani on 6 April, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CRP (PD) No. 2543 of 2017
And
C.M.P.No. 12071 of 2017
Seenu @ Ramadass ... Petitioner
Vs
1. S.Palani
2. R.Kannan
3. R.Santhanakrishnan
4. R.Ananthakrishnan
5. R.Natarajan
6. Rajalakshmi @ Rajakumari
7. K.Lalitha
8. S.Senthil Kumar
9. S.Pandian
10. S.Mahendran
11. S.Ramesh
12. P.Ramesh
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2
13. R.Shanmugam
14. R.Paramasivam
15. J.Elangovan
16. J.Gnansekaran
17. S.Mohammed Yahiya
18. K.Vijayakumar
19. Cooperative Society
20. The Commissioner
Parangipettai Village Panchayat
Parangipettai
...Respondents/RR 2 to 18 given up
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, against the orders passed in I.A.No. 145 of 2017 in
O.S.No. 10 of 2016, dated 18.04.2017 on the file of the District munsif
Court, Parangippettai.
***
For Petitioner : Mr. B.V. Sai Lakshmi
for M/s. R.S.Raveendhren
For 1st Respondent: No appearance
For RR 2 to 18 : Given up
For 19th Respondent: Mr.L.P.Shanmuga Sundaram
For 20th Respondent: Mr.D.Gopal
Government Advocate
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3
ORDER
The Civil Revision Petition has been filed by the plaintiff in O.S.No.
10 of 2016 now pending on the file of the District Munsif cum Judicial
Magistrate, Parangipettai, aggrieved by the order in I.A.No. 145 of 2017
dated 18.04.2017. The said application was filed under Order 26 Rule 9
CPC for appointment of an Advocate Commissioner. After counter had
been filed by the respondents, the said application came to be dismissed
necessitating the plaintiff to file the present Revision Petition.
2. O.S.No. 10 of 2016 had been filed by the revision
petitioner/plaintiff Seenu @ Ramadass against 20 defendants. The 20th
defendant is the Commissioner, Parangipettai Village Panchayat in
Bhuvanagiti.
3. The suit had been filed seeking a declaration that there is a
charge over the suit property for carrying out charity, which should be
carried out, by anybody who is in possession and enjoyment of the
properties and for a declaration that the plaintiff, as a legal heir of Rama
Padayachi is actually in possession and enjoyment of the suit property and
in the alternate for a declaration that a decree passed in O.S.No. 927 of
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1995, is not binding on the legal heirs of Rama Padayachi including the
plaintiff and the defendant is not entitled for possession of the suit
property and injunction seeking protection of the possession of the plaintiff
and for costs.
4. The entire issue arises with respect to the suit property which had
been described in the plaint as vacant land measuring 4.17 acres in
R.S.No. 98/3A, B.Mutlur Village, Bhuvanagiri Taluk. It is stated that the
forefathers of the plaintiffs have been carrying on a charity in the suit
property in accordance with a partition of the year 1934. The plaintiff
claims that he is in possession and enjoyment of the suit property and is
doing the charity for which there is a charge over the said property. He
claims that he had been doing the charity for the past 20 years. He also
claims that the said charity was created by a Judgment by this Court in
S.A.No. 1166 of 1991 and in S.A.No. 897 of 1998. The plaintiff was not a
party in an earlier suit in O.S.No. 927 of 1995. He filed this suit for a
declaration that the Judgment and decree in the said suit is not binding on
him.
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5. A written statement filed joining issue with the plaintiff by the
first defendant.
6. The plaintiff had then filed I.A.No. 145 of 2017 seeking
appointment of an Advocate Commissioner.
7. In the affidavit filed in support of the said application, among
various other aspects, the plaintiff had also stated that the Advocate
Commissioner would be required to determine possession of the suit
property and also to note down the physical features of the suit property.
It must be noted that the particular land had been donated by the
grandfather of the plaintiff to the Revenue Department and they have also
put that to use by putting up a fair price shop. There are also tenants and
there is also temple in the said place.
8. This application came up for consideration before the District
Munsif cum Judicial Magistrate, Parangipettai on 18.04.2017 and it was
held that an Advocate Commissioner cannot be appointed to determine
possession of a particular area of land and that would amount to gathering
of evidence and that the said fact must be established only by the plaintiff
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and the said application was dismissed. Questioning that order, the
plaintiff is in revision before this Court.
9. The learned counsel for the revision petitioner however insisted
that though in the affidavit, it had been stated that possession of the land is
central issue, the main reason advanced by the appellant for appointment
of an Advocate Commissioner was to note down the physical features and
for that particular purpose, it was necessitated that an Advocate
Commissioner had to be appointed.
10. During the course of discussion, doubts were raised over the lay
out of the land particularly, since it had been gifted by the grandfather of
the plaintiff to the revenue authorities for their utilisation and there were
also tenants in the said land. It was also observed that a charge had been
created over the land by Judgments of this Court in two Second Appeals
for the purpose to perform the charities as directed in the partition deed of
the year 1934. This Court therefore sought a report regarding the layout of
the land.
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11. Assistance was sought from the Block Development Officer/
Commissioner at that particular area but since no effective assistance was
afforded, a direction was given that the Block Development Officer should
be present in this Court. Accordingly, Mr.K.Sivagnana Sundaram,
Commissioner / Block Development Officer of Parangipettai in
Bhuvanagiri, Cuddalore District is present in Court. He had filed a memo
which is also counter signed by the learned counsel for the 20 th defendant
wherein he had given in detail, the particulars of the land and the various
constructions available in the said land and the nature of the construction.
A rough sketch had also been given and both the memo and the rough
sketch are retained as part of the records of this Court.
12. Notice had been directed to the respondents but though notice
had been served, there is no representations, let me not hold over from
passing orders in the Revision Petition and it would only be advantagous
to both the plaintiff and the defendants if trial in O.S.No. 10 of 2016
commences and proceeds further.
13. In view of the above observations, the following directions are
issued:-
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(i) The order under revision in I.A.No.145 of 2017 in O.S.No. 10 of
2016 dated 18.04.2017 is not interfered with. An Advocate Commissioner
need not be appointed at this particular stage.
(ii) Let the issues be framed in the suit if pleadings are completed.
(iii) let the evidence of parties be adduced.
(iv) If required to further clarify the lay of the land or the physical
features of the land, summons can be issued to the Revenue Officials to
produce the revenue records relating to the suit land and the District
Munsif cum Judicial Magistrate, Parangipettai, can place reliance on those
documents and on such evidence and proceed further to adjudicate the
issues in the suit; and
(v) If after recording of evidence and after, examining any official
witness in the manner aforesaid application filed either the plaintiff or the
defendants, the District Munsif cum Judicial Magistrate, Parangipettai, still
requires clarifications regarding the physical features, then there would be
no impediment on the said District Munsif cum Judicial Magistrate,
Parangipettai, taking recourse to Order 26 Rule 9 CPC and the Court can
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appoint an Advocate Commissioner and issue a warrant in accordance with
the clarifications required.
(vi). If such an Advocate Commissioner is appointed, a direction is
issued that the said Advocate Commissioner has to inspect the property in
the presence of the plaintiff and the defendants in the suit and both parties
should also be afforded opportunity to give their notes for inspection and
also if required file objections to any report or sketch filed by the Advocate
Commissioner. If further required, either the plaintiff or the defendants
may also issue summons to the Advocate Commissioner to examine him on
the aspects of the report / sketch if at all Advocate Commissioner is
appointed and if at all he files such report or sketch.
14. The learned counsel stated that the order of the District Munsif
cum Judicial Magistrate, Parangipettai dismissing I.A.No. 145 of 2017
should not come in the way of the very same Officer appointing an
Advocate Commissioner. If the District Munsif is of the opinion that to
meet the ends of justice and in the interest of parties, an Advocate
Commissioner is required then necessary steps can be taken in manner
known to law.
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C.V.KARTHIKEYAN, J.
Vsg
15. The Civil Revision Petition stands disposed of with the above
direction. Let the trial commence in the suit and proceed in manner
known to law. No order as to costs.
06.04.2022
vsg
Index: Yes/No
Speaking order / Non speaking order
To:
1. District Munsif Court, Parangippettai.
2.The Section Officer,
VR Section,
Madras High Court, Chennai.
CRP (PD) No. 2543 of 2017
And
C.M.P.No. 12071 of 2017
https://www.mhc.tn.gov.in/judis
