Madras High Court
Thayammal vs Meenathal on 9 March, 2022
C.R.P(PD)Nos.2312 & 2802 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P.(PD)Nos.2312 & 2802 of 2017
and
C.M.P.Nos.10887 & 13272 of 2017
Thayammal ... Petitioner in both CRPs
versus
Meenathal ... Respondent in
CRP No.2312/2017
1.Meenathal
Ramathal (died)
2.The State of Tamil Nadu,
Represented by
The District Collector,
Collectorate,
Tiruppur.
3.The Tahsildar,
Taluk Office,
Pollachi Road,
Palladam Taluk.
Appasamy Gounder (died)
4.Shanmugam @ Shanmugasundaram
5.Moorthy
6.Rukkumani ... Respondents in CRP No.2802/2017
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C.R.P(PD)Nos.2312 & 2802 of 2017
Prayer in CRP No.2312/2017: Civil Revision Petition has been
filed under Article 227 of the Constitution of India praying to set aside the Fair
and Decreetal Order dated 01.06.2017 in I.A.No.120 of 2017 in I.A.No.953 of
2011 in O.S.No.186 of 2011, on the file of the learned District Munsif Judge,
Palladam.
Prayer in CRP No.2802/2017: Civil Revision Petition has been
filed under Article 227 of the Constitution of India praying to set aside the Fair
and Decreetal Order dated 14.07.2017 in I.A.No.190 of 2017 in O.S.No.186 of
2011, on the file of the learned District Munsif Judge, Palladam.
For Petitioner in both CRPs : Mr.E.K.Kumaresan
For R1 in both CRPs : Mr.P.M.Duraisamy
For R2 & R3 in CRP2802/2017 : Dr.S.Suriya,
Additional Government Pleader
ORDER
Both the Revision Petitions have been filed by the plaintiffs in
O.S.No.186 of 2011, which is now pending on the file of the District Munsif
Court at Palladam.
2.The said suit had been filed by the plaintiff seeking declaration that the
plaintiff is the absolute owner of the suit property and for consequential
injunction restraining the first, second and fourth defendants from interfering
with peaceful possession and for costs of the suit.
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C.R.P(PD)Nos.2312 & 2802 of 2017
3.The suit property had been described in the Schedule to the plaint as
House bearing Door No.24 with Electricity Connection No.105, measuring 1
Cent in Vadugapalayam Village, Palladam in Grama Natham No.4/2.
4.It was the case of the plaintiff that one Nachimuthu Gounder had been
allotted the suit and the other properties under a Registered Partition Deed date
07.04.1983 and that the plaintiff was in possession and enjoyment of the suit
property from the year 1984. It was also the further case of plaintiff that the
first and second defendants, had obtained a Settlement Deed dated 06.10.1988,
and that the Settlement Deed was never acted upon and that the plaintiff
continued to be in possession and enjoyment of the suit property. Thereafter, it
had been stated that the first and second defendants tried to measure the suit
property and therefore, the plaintiff had necessity to file the suit for declaration
of title and for permanent injunction.
5.In that particular suit, the second defendant had been set ex-parte.
6.Along with the suit, the plaintiff had also filed I.A.No.953 of 2011
seeking interim injunction pending disposal of the suit. In that Interlocutory
Application, also the second defendant had been set ex-parte.
7.Thereafter, the second defendant filed I.A.No.991 of 2013, to set aside
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C.R.P(PD)Nos.2312 & 2802 of 2017
the ex-parte order in the suit alone. That application was allowed on
23.01.2014. A separate application had not been filed to set aside the ex-parte
order in I.A.No.953/2011. It was filed in the year 2017 and the second
defendant filed I.A.No.120 of 2017. That Interlocutory Application was
allowed by an order dated 01.06.2017 and questioning that particular order,
the present C.R.P.No.2312 of 2017 has been filed.
8.Let me address the issues in C.R.P.No.2312 of 2017 in the first
instance.
9.It is informed by both the learned counsel for the revision
petitioners/plaintiffs and also the respondent/second defendant that the second
defendant, subsequent to the ex-parte order in the suit having been set aside,
had also filed the written statement and the suit is ripe for trial.
10.Therefore, I would direct the District Court, Palladam to frame
necessary issues on the pleadings already available in the Court and thereafter,
commence trial in O.S.No.186 of 2011. The revision petitioner need not
meander around the Interlocutory Application in I.A.No.953 of 2011, since the
suit itself is directed to be taken up for trial and necessary evidence will have to
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C.R.P(PD)Nos.2312 & 2802 of 2017
be tendered as to whether the plaintiff/revision petitioner is entitled for
permanent injunction itself. Therefore, the issues for interim injunction will get
merged with the relief sought in the suit and the revision petitioner need not
pursue the order in I.A.No.120 of 2017 as any reasoning given in the order in
I.A.No.120 of 2017 will not have any bearing on the Judgment to be delivered
on analysis of evidence in O.S.No.186 of 2011 as such judgment will be
delivered on the basis of evidence adduced by both the parties.
11.With the said observations, the Civil Revision Petition No.2312 of
2017 is dismissed, however directing both the plaintiff and the
respondent/second defendant and the other defendants to commence trial and
to participate in the trial proceedings. Further, the learned District Munsif,
Palladam, is directed to proceed further with trial in the suit in O.S.No.186 of
2011. No costs.
12.The issues in C.R.P.No.2802 of 2017 had arisen owing to the fact
that the second defendant, had filed I.A.No.1901 of 2017 under Order XXVI
Rule 9 of C.P.C.
13.The learned counsel for the revision petitioner stated that the suit is
filed for declaration of title and for permanent injunction. The issue in respect
of possession, will have to be established only by evidence to be let in by both
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C.R.P(PD)Nos.2312 & 2802 of 2017
the parties and an Advocate Commissioner cannot be appointed for gathering
evidence.
14.A perusal of the order which is now impugned in the revision petition
shows that the learned District Munsif, Palladam had appointed an Advocate
Commissioner and had directed that the warrant to be issued to determine the
physical features of the property. As stated in the preamble itself, the plaintiff
claims possession from the year 1984 and also claimed that he is in continuous
possession. The defendants on the other hand, claim that they have a right
under a Settlement Deed dated 06.10.1988.
15.The nature of title of the plaintiff will have to be established only by
the plaintiff. The nature of possession and legality of such possession will have
to be established only by the plaintiff.
16.However, it is stated that since there had been some structural
alterations in the property, necessity to appoint an Advocate Commissioner
arose and therefore the second defendant had filed an application under Order
XXVI Rule 9 C.P.C., for appointment of an Advocate Commissioner. An
Advocate Commissioner had also been appointed.
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C.R.P(PD)Nos.2312 & 2802 of 2017
17.I am informed that since the Civil Revision Petition has been filed, the
Advocate Commissioner had not taken any steps to execute the warrant. Let
him hold over execution of the warrant. As stated in the order in
C.R.P.No.2312 of 2017, let evidence of both the parties be adduced in the first
instance. This is necessary. The plaintiff should graze the witness box and
adduce evidence. Thereafter, let the second defendant had also graze the
witness box and adduce evidence. On analysis of the evidence, if the learned
District Munsif finds that further clarification with respect to the nature of the
property or the nature or structural alterations of the property is required, then
let the warrant be issued to the named Advocate Commissioner and he shall
then make an inspection of the property and file a report.
18.If such a decision is taken by the learned District Munsif, Palladam
after the evidence of the plaintiff and defendants are recorded, the Advocate
Commissioner is to inspect the property after giving notice to both the plaintiff
and the second defendant and in their presence he shall inspect the property.
An opportunity is given to the both sides to file objections to the report if
deemed necessary. They may even summon the Advocate Commissioner to
adduce evidence and also to be cross examined if required in respect of the
report filed by him.
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C.R.P(PD)Nos.2312 & 2802 of 2017
19.These are steps which can be taken after the evidence of the plaintiff
and the defendants are recorded by the learned District Munsif at Palldam. If
that evidence is sufficient to address the issues framed in the suit, I.A.No.190
of 2017 need not be pursued and warrant need not be issued to the Advocate
Commissioner. That decision should be taken after recording of evidence.
20.Let me not interfere with the order which has been already passed,
but only direct that it should be held over and the warrant be issued after
recording of evidence.
21.With the said observations, this Civil Revision Petition No.2802 of
2017 stands disposed of. No costs.
22.In the result,
(i) C.R.P.No.2312 of 2017 is dismissed. No costs.
(ii) C.R.P.No.2802 of 2017 is disposed of. No costs.
(iii) Consequently, the connected miscellaneous petitions are closed.
09.03.2022
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C.R.P(PD)Nos.2312 & 2802 of 2017
Index:Yes/No
Speaking Order:Yes/No
ssi
To:
1.The District Munsif Judge,
Palladam.
2.The Public Prosecutor,
High Court, Madras.
3.The Section Officer,
V.R.Section,
High Court of Madras.
C.V.KARTHIKEYAN, J.
ssi
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C.R.P(PD)Nos.2312 & 2802 of 2017
C.R.P.(PD)Nos.2312 & 2802 of 2017
09.03.2022
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