Madras High Court
Lakshmi vs Neelavathi on 29 June, 2022
CRP (NPD) No.331 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 29.06.2022
CORAM
THE HONOURABLE Mrs. JUSTICE J.NISHA BANU
C.R.P.(NPD)No.331 of 2019
and
C.M.P.No.2434 of 2019
Lakshmi .... Petitioner
vs
Janaki Ammal (Died)
1. Neelavathi
2. Valli
3. Manoharan .... Respondents
Civil Revision Petition filed under Section 227 of the Constitution of
India against the order and decreetal order dated 14.08.2018 made in
I.A.No.11 of 2014 in A.S.No.2 of 2014 on the file of the Court of the Principal
District Munsif, Tindivanam.
For Petitioner : Mr.T.Dhanasekaran
For respondent : Mr.V.Ragunathan
ORDER
This Civil Revision is filed against order and decreetal order dated
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CRP (NPD) No.331 of 2019
14.08.2018 made in I.A.No.11 of 2014 in A.S.No.2 of 2014 on the file of the
Court of the Principal District Munsif, Tindivanam.
2. The petitioner is the appellant and the plaintiff in the Original Suit.
The suit schedule is totally 15 cents in Old S.No.26/8. The same was divided by
five persons namely Munusamy, Sadagopan, Subramani, Elumalai, Balarama
Pathar and each were allotted 3 cents of land by the government. The
defendant is the wife of one of the allottees namely Elumalai. Since the
defendant vacated Kuruvampettai and settled permanently at Kancheepuram,
Munusamy, Sadagopan and Subramani each added one cent to 3 cents and are
in possession of 4 cents. The case of the defendant is that her husband
Elumalai was allotted patta for 3 cents. He also purchased 3 cents from
Balarama Pathar and thus, she is entitled for 6 cents. However, the defendant
is not in possession of 6 cents of land and her property is encroached by others.
In the trial Court, an Advocate Commissioner was appointed to inspect the suit
property. As in the schedule of property, it was mentioned as 4 cents, the
Advocate Commissioner had measured 4 cents alone. Originally, the suit was
filed for permanent injunction and subsequently, a petition seeking to appoint
Advocate Commissioner was filed urgently and therefore, complete details
were not stated in the petition. Hence, this second petition to appoint a fresh
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CRP (NPD) No.331 of 2019
Advocate Commissioner to measure the entire 15 cents in the said survey
number along with the help of surveyor and VAO and file his report and plan.
3. The respondent has filed counter stating that an Advocate
Commissioner report and plant already filed were not set aside. Therefore,
seeking appointment of Advocate Commissioner for the same reason to
measure the properties other than the suit properties is not maintainable the
trial Court on full fledged trial had passed the judgment. Only to drag on the
proceedings, this application has been hence the same is to be dismissed.
4. Learned counsel for the appellant would submit that the First
Appellate Court is the last Court for considering the facts and evidences and
the lower Appellate Court had filed to note the scope of Order 26 Rule 9 C.P.C.
The Advocate Commissioner has to be appointed to survey the entire length of
15 cents of land and decide the real issues between the parties and to
distinguish each share as per the assignment. The lower appellate Court has
not given an opportunity given to the petitioner to decide the real issues
between the parties.
5. On the contrary, the learned counsel for the respondent would submit
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CRP (NPD) No.331 of 2019
that an Advocate Commissioner was appointed on the application by the
petitioner before the trial Court and the Advocate Commissioner had also filed
his report and plan. Without striking out the earlier report and plan of the
Advocate Commissioner, a fresh Advocate Commissioner cannot be appointed.
Hence, he would pray for dismissal of the CRP.
6. Heard the learned counsel for the petitioner and the learned counsel
appearing for the respondents and perused the materials available on record.
7. The petitioner filed a suit for declaration and permanent injunction
and later amended as one for recovery of possession stating that the
respondent trespassed into the lands of the petitioner. It is an admitted case
that Old S.No.26/8, New S.No.26/25 measuring 15 cents were alloted to
Munusamy, Sadagopan, Subramani, Elumalai, Balarama Patha with patta each
with 3 cents by the government. The case of the petitioner is that the
respondent left Kuruvamapettai and settled at Kancheepuram permanently
from the year 1980. Hence 3 cents of land allotted to her husband Elumalai as
it was lying vacant was divided between Sadagopan, Subramani and Munusamy
thereby each taking one cent. The petitioner claims right over 3 cents allotted
to Elumalai, totally an extent of 6 cents but she is not in possession of 6 cents
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CRP (NPD) No.331 of 2019
and it is in possession of the others. The dispute is between the petitioner and
the respondent and not with the other allottees of land. Therefore, this Court
is of the opinion that an appointment of a fresh Advocate Commissioner to
measure the entire 15 cents of land is not warranted. The order passed by the
Court below is well founded.
8. This Court finds no infirmity or irregularity in the order passed by the
Court below. Therefore, the Civil Revision Petition fails and the same is
dismissed. No costs. Consequently, connected miscellaneous petition is closed.
29.06.2022
Index:Yes/No
Speaking/Non-speaking order
vsi
To
The Principal District Munsif, Tindivanam.
https://www.mhc.tn.gov.in/judis
CRP (NPD) No.331 of 2019
J.NISHA BANU.J.,
vsi
C.R.P.(NPD)No.331 of 2019
and
C.M.P.No.2434 of 2019
29-06-2022
https://www.mhc.tn.gov.in/judis
