Madras High Court
Kumarasamy vs Jothimani on 1 February, 2022
C.R.P. (NPD) No.2082 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.02.2022
CORAM:
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
C.R.P. (NPD) No.2082 of 2019
and
C.M.P.No.13452 of 2019
Kumarasamy .. Petitioner
Vs.
1.Jothimani
2.Ramanathan .. Respondents
Civil Revision Petition is filed under Article 227 of Constitution of
India, to set aside the fair and decreetal orders passed by the I Additional
District Munsif, Erode, dated 08.04.2019, in E.A.No.101 of 2018 in
E.P.R.No.40 of 2017 in O.S.No.1534 of 2004.
For Petitioner : Mr.N.Manokaran
For Respondents : Mr.M.Karthik
ORDER
This Civil Revision Petition is directed against the order in E.A.
No.101 of 2018 in E.P. No.40 of 2017 in O.S. No.1534 of 2004 on the file
of I Additional District Munsif Court, Erode.
2. Brief facts that are necessary for the disposal of this Civil Revision
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C.R.P. (NPD) No.2082 of 2019
Petition are as follows:
The revision petitioner as plaintiff filed a suit in O.S. No.1534 of
2004 on the file of I Additional District Munsif Court, Erode, for
permanent injunction restraining the defendants in the suit from interfering
with the plaintiff's peaceful possession and enjoyment of suit 'A' schedule
property and to restrain the defendants from interfering with the plaintiff's
right to take water through the channel in suit 'B' schedule property. The
suit is also for an injunction restraining the defendants from interfering
with the plaintiff's right to draw water and irrigate plaintiff's lands by
taking water from the well situated in the suit 'C' schedule property. A
Counter Claim was also raised. The trial Court decreed the suit and
allowed the counter claim by declaring the first defendant's right over the
channel marked as “A,B,C,D” in the plan appended to the counter claim
and by directing the plaintiff to restore the channel within three months.
The respondents filed an execution petition in E.P. No.40 of 2017 to
execute the decree by allowing counter claim and the execution petition
was contested by the defendant on the ground that the defendants have
already provided a channel course with the width of 4 ft. so as to enable
the plaintiff to irrigate his land from South East direction. It is also stated
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C.R.P. (NPD) No.2082 of 2019
that the respondent has provided a channel as per decree in counter claim
and the decree is therefore fully complied with.
3. The revision petitioner filed an application for appointment of
Advocate Commissioner directing him to note down the existence of
Cobar Gas plant and if the channel course is provided in that particular
line, there is a possibility of damage to the existing Cobar Gas plant.
Similarly the Advocate Commissioner was also required to note down the
physical features to show that the channel course provided by the
petitioner is sufficient to ensure free flow of water. The said petition was
opposed by the respondents. As admitted in the counter claim of
defendants in the suit was also allowed by declaring that the first defendant
is entitled to the channel shown as 'A', 'B', 'C', ' D' as per the plan appended
to the counter claim. The plaintiff in the suit was also directed to restore
the channel, as it was before, by granting a decree for mandatory
injunction. It was pointed out that during pendency of the suit itself, an
Advocate Commissioner was appointed to note down the physical features
and that the report was filed along with the plan.
4. Since the first defendant has filed the application for the relief of
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C.R.P. (NPD) No.2082 of 2019
mandatory injunction to restore the water course as per decree in O.S.
No.1533 of 2004, the lower Court observed that the appointment of an
Advocate Commissioner to note down the physical features so as to
execute the decree not in terms of the judgment and decree of the trial
Court, but as per the convenience of the revision petitioner, cannot be
considered. As against the order dismissing the petition filed by plaintiff,
the above Civil Revision Petition is filed.
5. This Court is unable to find any merits in this Civil Revision
Petition as the grounds raised in this revision petition are unsustainable.
The appointment of Advocate Commissioner is permissible to elucidate
any matter in dispute. While the Commissioner can be appointed for local
inspection, so as to find out and resolve the actual dispute, the Court is not
expected to appoint an Advocate Commissioner to find out whether the
decree of the trial Court can be avoided on the basis of the plea which was
negatived by the trial Court at the time of granting relief in terms of the
counter claim raised by the respondent.
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C.R.P. (NPD) No.2082 of 2019
6. This Court finds no merit in the Civil Revision Petition and the
same is dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
01.02.2022
Internet : Yes
Speaking order / Non-speaking order
Index: Yes / No
bkn
To
The I Additional District Munsif, Erode.
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C.R.P. (NPD) No.2082 of 2019
S.S.SUNDAR, J.,
bkn
C.R.P. (PD) No.2082 of 2019
01.02.2022
https://www.mhc.tn.gov.in/judis
