Madras High Court
K.Eswaran vs Samidurai @ Venkatachalam on 27 January, 2022
C.R.P.(PD) (MD) No.1970 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(PD) (MD) No.1970 of 2017
and
C.M.P.(MD) No.9981 of 2017
1.K.Eswaran
2.Duraiammal .. Petitioners/Respondents/
Defendants
-vs-
Samidurai @ Venkatachalam .. Respondent/Petitioner/
Plaintiff
Prayer :- Petition filed under Article 227 of the Constitution of India to
set aside the impugned fair and decreetal order dated 24.07.2017 passed
in I.A.No.1106 of 2015 in O.S.No.367 of 2015 by the District Munsif
Court, Palani.
For Petitioners : Mr.S.Ramu
For Respondent : No appearance
******
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C.R.P.(PD) (MD) No.1970 of 2017
ORDER
The defendants are the revision petitioners before this Court
challenging the order dated 24.07.2017, passed in I.A.No.1106 of 2015
in O.S.No.367 of 2015 in and by which, the application filed by the
respondent for appointing an Advocate Commissioner, who with the help
of the Village Administrative Officer and Surveyor shall inspect, measure
and submit a report regarding the 3 feet long and 1½ feet wide East-West
wall put up by the revision petitioners on the 3 feet wide North-South
common channel was allowed.
2. The brief facts are as follows:-
2.1. The respondent herein had filed the suit in O.S.No.367 of
2015 for the following reliefs:-
“(m) thjpapd; epyj;jpw;F bry;Yk; 3 mo mfy
bjd;tly; bghJ tha;f;fhypy; Rkhh; 20 mo ePsk; tiu mHpj;J
md; nky; gpujpthjpfs; 3 mo ePsk;. ½ mo mfyk; cs;s
fpHnky; Rth; vGg;gpa[s;sjpy; i& fpHnky; Rtw;iw mfw;wp i&
bjd;tly; bghJ tha;f;fhiy Kd;g[ ,Ue;jJ nghy; mikj;J
bfhLf;Fk;go gpujpthjpfs; kPJ braYWj;Jf;fl;lis
gpwg;gpf;Fk;gof;Fk;.
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C.R.P.(PD) (MD) No.1970 of 2017
(M) mt;thW gpujpthjpfs; i& fpHnky; Rtw;iw
mfw;wpf;bfhs;s kWf;Fk;gl;rj;jpy; khz;gik ePjpkd;wk; K:yk; i&
fpHnky; Rtw;iw mfw;wpf;bfhLf;f cj;jputpLk;gof;Fk;.
(,) ,t;tHf;fpd; bryt[ bjhifia thjpfF
;
gpujpthjpfis brYj;jp itf;Fk;go cj;jputpLk;gof;Fk; kw;Wk;
(<) ,t;tHf;fpd; jd;ikf;Fk;. NH;epiyf;Fk; Vw;g
khz;gik nfhh;l;lhuth;fSf;fF a[j;jkha; njhd;Wk; ,ju
ghpfhu';fSk; thjpf;F fpilf;f jPh;gg[ bra;a ntz;Lkha;
gpuhh;jj; pff; g;gLfpwJ/”
3. The suit has been filed on 30.10.2015. Prior to the filing of
this suit, the revision petitioners herein had filed O.S.No.87 of 2015 on
the file of the very same Court for a declaration and consequential
injunction. The respondent herein had thereafter filed an application in
I.A.No.1106 of 2015 for appointing an Advocate Commissioner for the
relief stated supra.
4. In the affidavit filed in support of the said application, the
respondent would submit that the revision petitioners herein who have
their house abutting the North-South channel had started putting up
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C.R.P.(PD) (MD) No.1970 of 2017
construction and in the course of construction, has encroached into the
common lane to an extent of ½ feet and put up a wall. This
encroachment had to be taken note of and therefore, the plaintiff has
come forward with the impugned application.
5. The defendants had filed a counter inter alia contending that
the appointment of an Advocate Commissioner is only to gather
evidence. The revision petitioners had already filed a suit in O.S.No.87
of 2015 for the relief of declaration and injunction and despite the
pendency of the suit, the respondent/plaintiff has come forward with the
present suit in O.S.No.367 of 2015. The revision petitioners would
further submit that there is absolutely no description as to the details of
the encroachment and therefore, the plaintiff, who had no clue about the
encroachment has come forward with the application for appointing an
Advocate Commissioner to identify the same. Therefore, the same is
clearly a case of gathering evidence. However, despite such opposition,
the learned Judge has proceeded to allow the said application and
aggrieved by the same, the revision petitioner is before this Court.
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C.R.P.(PD) (MD) No.1970 of 2017
6. Heard the learned counsel for the petitioners.
7. The respondent, though served, has not entered appearance.
8. While making submissions, learned counsel appearing for
the petitioners submitted that the suit filed by the revision petitioners in
O.S.No.87 of 2015 for a declaration and injunction has been decreed by
judgment and decree dated 03.10.2017. Further, the instant suit is now
posted for mediation and the next hearing is on 16.02.2022. That apart,
considering the fact that the plaintiff's right to the suit property has been
declared in the suit in O.S.No.87 of 2015, the present application for
appointing an Advocate Commissioner to note down the encroachment
becomes redundant. Consequently, the Civil Revision Petition is allowed
and the order dated 24.07.2017 is set aside. No costs. Consequently,
connected miscellaneous petition is closed.
27.01.2022
Index : Yes/No
Speaking/Non-Speaking Order
abr
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C.R.P.(PD) (MD) No.1970 of 2017
P.T.ASHA, J.
abr
Note:-
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
Advocate / litigant concerned.
To
The District Munsif, Palani.
C.R.P.(PD) (MD) No.1970 of 2017
Dated: 27.01.2022
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