Madras High Court
S.Balaji vs G.Arumugam on 1 February, 2022
C.R.P.(PD).No.1651 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P.(PD).No.1651 of 2021
and
C.M.P.No.12796 of 2021
S.Balaji .. Petitioner
Vs.
1.G.Arumugam
2.Josef Prem Raj
3.T.Govindammal
4.K.Devi
5.S.Elumalai
6.N.Siddeshwaran
7.K.Ramasamy'8.K.Thirupathy
9.J.Malarvizhi
10.A.Saroja
11.J.Sivakumar
12.T.Valliamai
13.Sekar .. Respondents
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C.R.P.(PD).No.1651 of 2021
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution
of India, praying to set aside the fair and decreetal order of the learned
Principal District Judge, Villupuram dated 26.04.2021 in I.A.No.88 of 2021
in O.S.No.59 of 2017 and consequently dismiss the I.A.No.88 of 2021 in
O.S.No.59 of 2017 on the file of the Principal District Judge, Villupuram.
For Petitioner : Mr. T.Sai Krishnan
For Respondents : Mr.K.Chandrasekar
for Mr.T.Dhanasekaran
*********
ORDER
Challenge in this Revision is to the order appointing Commissioner to
find out as to whether the constructions put up by the defendants are within
the 80 cents belonging to the defendants or in the landed property of 1 acre
belonging to the plaintiff.
2. The prayer in the application for appointment of Commissioner
reads as follows:-
“For the reasons stated in the accompanying
affidavit it is prayed that this Hon'ble Court may be
pleased to appoint an advocate Commissioner along
with Taluk head surveyor, to inspect the suit property
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C.R.P.(PD).No.1651 of 2021
and to measure the same and to demarcate and fix the
boundaries of the suit schedule property of the
plaintiff and to note down as to whether the
respondents constructions are all within the
respondents landed property of 0.80 cents or
plaintiff's landed property of 1 acre of the suit
schedule property and other physical features that
may be pointed out at the time of local inspection and
investigation and to submit a report and plan drawn
to scale and thus render Justice.”
3. The plaintiff sued for declaration of his title, mandatory injunction
for removal of the superstructure in a portion of the suit schedule property,
for recovery of possession and for permanent injunction restraining the
defendants from trespassing over the suit property.
4. According to the plaintiff, the suit property belonged to his
grandfather Ariputhiri Gounder. Ariputhiri Gounder died leaving behind one
Govindasamy Gounder as his only son and on the death of Govindasamy
Gounder in 1962, the plaintiff inherited the property. According to the
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C.R.P.(PD).No.1651 of 2021
plaintiff, the 1st defendant's father kothandapani has purchased 80 cents in
S.No.152/1 on South side of the suit property under the registered sale deed
on 30.03.1968. The said Kothandapani has laid out and sold out the land to
the defendants 2 to 13.
5. Claiming that the defendants had trespassed into the property of the
plaintiff in the guise of making construction in the property purchased by
them, the plaintiff has come up with the above suit. The plaintiff sought for
declaration of title in respect of the entire 1 acre of the property and sought
for recovery of possession of sub-items 1 and 2 of the A schedule property
which measure about 7020 sq.ft and 2400 sq.ft respectively.
6. The suit is resisted by the defendants contending that the plaintiff is
not the grand son of Ariputhiri Gounder and title traced to 1 acre of property
in S.No.152/1 by the plaintiff was seriously disputed by the defendants. The
defendants would further claim that the plaintiff's grandfather parted away
with the property even in the year 1940. In paragraph 6 of the written
statement, the 4th defendant specifically claimed that he has purchased the
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Plot Nos.8 and 9 under the sale deed dated 10.09.2012 from one Ganapathy
S/o. Perumal and he purchased the Plot No.7 under the sale deed dated
16.09.2016. Therefore, according to the 4th defendant he is entitled to Plot
Nos.7, 8, 9 and 17. He would also contend that he has put up construction
only in the property purchased by him.
7. After the evidence was complete, the plaintiff came up with an
application in I.A.No.88 of 2021 seeking appointment of Commissioner. In
the affidavit filed in support of the application, the plaintiff claimed that the
dispute is only as to whether the construction put up by the defendants is in
80 cents of land that was sold by Kothandapani or in 1 acre of land that
belonged to Ariputhiri Gounder. In view of the contention that the
construction has not been put up in plaintiff's property, according to the
plaintiff, a need had arisen for seeking appointment of Commissioner to
identify the property over which the construction has been put up. This
application was resisted on the ground that it is belated and on the ground
that a Commissioner cannot be appointed to gather evidence. The trial
Judge however relying upon the judgment of this Court in AIR 1986
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Madras 33 concluded that the appointment of Commissioner is necessary.
8. Mr.T.Sai Krishnan, learned counsel appearing for the petitioner
would submit that the claim in the affidavit that the dispute is only with
reference to location of construction is incorrect. Taking me through the
written statement filed, Mr.T.Sai Krishnan would submit that the defendant
has denied the title of the plaintiff to the 1 acre of land. In the course of
pleading he had stated that, construction was put up in the property
purchased by the defendant from Kothandapani. The counsel would add
that the defendant had not admitted the title of the plaintiff to any portion of
the suit property. He would also point out that the very application was filed
after completion of evidence, only to fill up the lacuna in the evidence and to
gather evidence in support of the claim of the plaintiff.
9. Contending contra, Mr.K.Chandrasekar, learned counsel appearing
for the 1st respondent/ plaintiff would submit that appointment of
Commissioner is absolutely essential in view of the fact that there is dispute
regarding location of the construction. Arguing further the counsel would
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submit that if the plaintiff succeeds proving his title, there is a possibility of
the suit for mandatory injunction being dismissed on the ground that he had
not proved the existence of the construction in the suit property. He would
also add that wherever the dispute relates to location of very construction,
the Courts can appoint Commissioner to find out as to whether the
construction has been put up in the suit property or outside the suit property.
10. I have considered the submissions of the counsel on either side.
The assumption under which the plaintiff had filed the application for
appointment of Commissioner itself seems to be incorrect. The affidavit
filed in support of the application proceeds on the footing that the plaintiff
admitted to the title of 1 acre of land which is described as suit property. The
defendant had denied the status of the plaintiff as the grandson of Ariputhiri
Gounder the original owner. The defendant had claimed that Ariputhiri
Gounder had sold the property even in 1940 and therefore the plaintiff has
no right and the defendant would set up title in himself to certain extent of
property that he had purchased from Kothandapani's successors in interest.
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11. Therefore, it is for the plaintiff to prove his title. If the plaintiff
succeeds in proving title to the suit property as claimed by him. He would
automatically be entitled to a decree for possession after removal of the
superstructures. Whatever superstructure exists in the suit property will have
to be removed. Therefore, there is no question of appointment of
Commissioner to find out as to whether there is a construction in the suit
property or not. If the construction is not in the suit property the decree for
mandatory injunction need not be executed. A decree for possession even
without the prayer for mandatory injunction carries with it a direction for
removal of the superstructure. Therefore, I do not think the appointment of
Commissioner in a case of this nature can be for any other purpose than
gathering evidence for title.
12. The fact that the application has been filed after the evidence has
been recorded militates against the claim of the plaintiff. If the
commissioner's report is available before the evidence is recorded, then it
will be open to the party to let in evidence by examining Commissioner and
prove that the report is incorrect. Such liberty would be lost in view of the
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C.R.P.(PD).No.1651 of 2021
stage at which the Commissioner has been appointed.
13. I am therefore of the opinion that the order of the trial Court
needs to be set aside and it is accordingly set aside and the Revision stands
allowed. No costs. Consequently, the connected miscellaneous petition is
closed. It is made clear that if the plaintiff succeeds in proving his title, he
would automatically be entitled to a decree for possession after removal of
superstructure.
01.02.2022
dsa
Index : No
Speaking order
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C.R.P.(PD).No.1651 of 2021
R.SUBRAMANIAN, J.
dsa
To
The Principal District Judge, Villupuram.
C.R.P.(PD).No.1651 of 2021
01.02.2022
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