Madras High Court
Ganeshan vs L.Krishnan on 10 August, 2022
C.R.P.(PD)No.279 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 10.08.2022
CORAM :
THE HON'BLE Mrs.Justice J.NISHA BANU
C.R.P.(PD)No.279 of 2019
and C.M.P.No.2113 of 2019
1. Ganeshan,
S/o Chennan
2. Ranjani
W/o Ganeshan
3. Pallaki,
W/o Channan .. Petitioners
Vs
1. L.Krishnan,
S/o Late Lingan,
2. Sumathi,
w/o L.Krishnan ..Respondents.
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India against the fair and decreetal order dated 10.10.2018
passed in I.A.No.74 of 2018 in O.S.No.61 of 2017 on the file of the learned
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C.R.P.(PD)No.279 of 2019
District Munsif, Coonoor and to set aside the same.
For Petitioners : Mr.T.R.Rajaraman
for Mr.A.B.Reehana Begum
For Respondents : Mr.A. Immanuel
ORDER
This Civil Revision Petition has been filed as against the fair and
decreetal order dated 10.10.2018 passed in I.A.No.74 of 2018 in O.S.No.61
of 2017 on the file of the learned District Munsif, Coonoor.
2. The brief facts of the case are as follows:
The respondents have filed a suit for permanent injunction and the
petitioners have also filed a detailed written statement contesting the same.
The father and mother of the petitioners built a house in Government
Natham in S.No.964/6, New S.No.1755/22 of Ketti Village and have been
living there for over 30 years. In recognition of possession, a natham patta
has been issued in the name of the petitioners' mother for 2 cents wherein
their house situates. The respondents, while constructing a house in
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C.R.P.(PD)No.279 of 2019
S.No.963/11, has encroached upon a portion of the petitioners' land when
they were gone out of station. They have encroached nearly ¼ cents of the
petitioners' land and put up illegal construction. The petitioners have also
filed a counter claim in the suit. In order to prove the encroachment and
illegal construction, the petitioners filed I.A.No.74 of 2018 for appointment
of Advocate Commissioner to inspect the suit schedule property with the
help of a qualified surveyor. But the learned District Munsif, dismissed the
said petition. Hence, this C.R.P.
3. Heard the learned counsel for the petitioners and the learned
counsel for the respondents and perused the materials available on record.
4. Learned counsel for the petitioners would submit that the
application for appointment of Advocate Commissioner is neither for
collecting evidence nor for ascertainment of possession. He would further
submit that unless a Commissioner visits and note down the physical
features of the respective properties of parties, the Court will not be in a
position to come to a conclusion and pass appropriate judgment. Hence, the
application has to be allowed.
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C.R.P.(PD)No.279 of 2019
5. On the contrary, the learned counsel for the respondents would
submit that the suit is in respect of property in New Survey No.963/11 in
patta No.119 of Ketty Village, but the counter claim of the petitioners is in
different Survey No.964/6 of Ketty Village which belongs to Government
land and not belonging to the petitioners. Moreover, the petitioners have not
made the State Government of Tamil Nadu as party to the petition. As per
Swachh Barath Mission, Rs.12,000/- was allotted to the respondents to
construct toilet in the said place in the year 2015-2016. If the alleged land
belongs to the petitioners, the Government would not have allowed to
construct toilet in the said place and the toilet constructed was duly
inspected by the Ketty Panchayat Government officials and after thorough
inspection and all other formalities, the Government fund was granted and
the petitioners have no right to claim or demolish the same. The said
petition is not maintainable and the trial court has rightly dismissed the
same.
6. Perusal of the records show that the relief sought for in the suit is
for permanent injunction. The possession of the petitioners in S.No.964/6
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C.R.P.(PD)No.279 of 2019
of Ketty Village is not in dispute. When the respective parties deny the lie
and location of disputed construction and specifically state that the
construction is within their property and there is no encroachment, the
nature of dispute could be resolved only if the exact location of construction
is brought to the knowledge of Court, which cannot be done except by
appointment of Advocate Commissioner. Therefore, this Court is of the
view that the details of encroachment and the extent of construction can be
ascertained only by appointing an Advocate Commissioner and it will not
amount to collection of evidence as observed by the learned District Munsif.
Thus, the learned District Munsif ought to have allowed the application
seeking appointment of Advocate Commissioner.
7. Under such circumstances, this Court is inclined to allow the Civil
Revision Petition. Accordingly, the Civil Revision Petition is allowed and
the fair and decretal order passed by the learned District Munsif in
I.A.No.74 of 2018 in O.S.No.61 of 2017 dated 10.10.2018 is set aside. The
trial Court is directed to appoint an Advocate Commissioner within a period
of two weeks from the date of receipt of a copy of this order, by directing
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C.R.P.(PD)No.279 of 2019
the Advocate Commissioner to inspect the property and file a report within a
period of two weeks thereafter. On filing of such report, the trial Court shall
dispose of the suit within a further period of three months thereafter. No
costs. Consequently, connected miscellaneous petition is closed.
10.08.2022
Index :Yes/No
Speaking/Non-speaking order
vsi
To
The District Munsif, Coonoor.
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C.R.P.(PD)No.279 of 2019
J.NISHA BANU, J.
(vsi)
C.R.P.(PD)No.279 of 2019
10.08.2022
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