Madras High Court
Mahathma vs Chokkalingam on 4 March, 2022
C.R.P. No. 783 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. SESHASAYEE
C.R.P. No. 783 of 2021
&
C.M.P. No. 6562 of 2021
Mahathma ..Petitioner
Vs.
1. Chokkalingam
2. Kalpana
3. Sivalingam
4. Indira
5. Vennila
6. Shanthi
7. Seenivasan
8. Dhanasekaran ..Respondents
Prayer: Civil Revision Petition under Article 227 of the Constitution of
India to set aside the order made in I.A. No. 2 of 2020 in O.S. No. 8 of 2020
dated 21.12.2020 on the file of the learned District Munsif Court,
Uthangarai.
https://www.mhc.tn.gov.in/judis
C.R.P. No. 783 of 2021
For Petitioner :: Mr.A. Prakash
For Respondents :: Mr.V. Nicholas for
R1 to R6
ORDER
This Civil Revision Petition is filed challenging the order dated 21.12.2020
passed by the learned District Munsif, Uthangarai, dismissing I.A. No. 2 of
2020 in O.S. No. 8 of 2020.
2. The brief facts are:
This is the second round of litigation between the same parties. The
earlier litigation pertains to a certain tamarind tree, which the
plaintiff/revision petitioner claims was situated in S.No. 75/3B. Since he
had some disturbance to his personal enjoyment of tamarind tree from the 1st
defendant in the present suit, he laid O.S. No. 10 of 2017 against the 1 st
defendant for declaration of his title over the tamarind tree and for a
permanent injunction. The trial Court decreed the suit and the 1 st defendant
took up the matter before Sub Court, Uthangarai in A.S. No. 12 of 2017.
That appeal came to be allowed. A reading of the First Appellate Court's
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C.R.P. No. 783 of 2021
judgment indicates that though the plaintiff contended therein that the
tamarind tree in question was in S.No. 75/3B , the tamarind tree was not
proved to be his and in order to come to that conclusion, it took into account
that none of the documents including the partition deed under which the
plaintiff claims title to the tamaraind tree indicates about the existence of
the tamarind tree there.
3. The present suit in O.S. No. 8 of 2020 is indeed laid for declaration of
title of the plaintiff/revision petitioner over 7.5 cents of land in S.No. 75/3B
and for injunction. In this suit, he required a Commissioner to be appointed
for measuring the property. This was opposed by the defendants and that
objection came to be sustained by the learned Trial Judge when he chose to
dismiss the application in I.A. No. 2 of 2020 for appointing a
Commissioner.
4. Heard both sides.
5. Learned counsel for the revision petitioner/plaintiff submitted that
earlier suit was confined to plaintiff's right over the tamarind tree and the
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C.R.P. No. 783 of 2021
present suit pertains to his title over a piece of land in S.No. 75/3B. Hence,
the cause of action for both the suits are different, but, the learned District
Munsif, Uthangarai, appears to have been influenced by the findings in A.S.
No. 12 of 2017.
6. A careful reading of the judgment in A.S. No. 12 of 2017 indicates
that the cause of action previously was confined to a tamarind tree and not
title over the land. The present suit is for title over the land. In this case,
the defendants have taken out a plea that the piece of property over which
the plaintiff claims title is poramboke, and that it does not belong to the
plaintiff. Even if the defendants' line of pleading in this case is presumed to
be true, yet, the plaintiff can defend his possession against the whole world
except the true owner. How the Court is going to approach this case post
trial cannot be speculated at this point of time.
7. The learned counsel for the revision petitioner/plaintiff brought to the
notice of this Court the patta issued in the name of the revision petitioner by
the Revenue Authorities and also took this Court through the judgment in
A.S. No. 12 of 2017 wherein the title documents of the plaintiff were
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C.R.P. No. 783 of 2021
incidentally discussed, and it is apparent that the plaintiff seems to have lost
A.S. No. 12 of 2017 essentially because he could not establish the situs of
the tamarind tree, and whether it was allotted to him in the partition deed
etc. The scenario is quite different now. The defendants also claim title to
the same piece of land, but from a different source.
8. Without getting into the merit of the rival contentions, based on the
pleadings, this Court does consider that this is a case where the
Commissioner's report will be useful for final adjudication. Therefore, this
Court chooses to interfere with the order under challenge and allow the civil
revision petition. The order of the Trial Court dated 21.12.2020 passed in
I.A. No. 2 of 2020 is accordingly set aside.
9. Learned District Munsif, Uthangarai is now required to appoint an
advocate, who is regular to the Court and has reasonable experience and
exposure to Civil Court and practice in Civil Law as an Advocate
Commissioner, fix his remuneration and invite his report. The defendants
are also at liberty to approach the learned District Munsif for a direction to
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C.R.P. No. 783 of 2021
N. SESHASAYEE,J.
nv
the Commissioner to note down such points, the defendants may be
interested in.
10. The Civil Revision Petition stands allowed. No costs. Connected
C.M.P. is closed.
04.03.2022
nv
To
The District Munsif Court,
Uthangarai.
C.R.P. No. 783 of 2021
https://www.mhc.tn.gov.in/judis
