Madras High Court
R.Manoharan vs S.Ramakrishnan on 29 March, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.03.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
SA.No.1024 of 2013
and
MP No.1 of 2013
1. R.Manoharan
2. Ramakrishnan
3. Savithiri ... Appellants
Vs.
1. S.Ramakrishnan
2. S.Nagaraj
3. D.Sivaraj ...Respondents
Prayer: Second Appeal filed under section 100 of the Code of Civil
Procedure to set aside the Judgement and decree made in A.S.No.37 of
2011 on the file of the Subordinate Judge, Pollachi dated 28.06.2013
confirming the decree and judgement made in O.S.No.225 of 2005 on
the file of the District Munsif Court, Pollachi dated 14.09.2011 and
decree the suit as prayed for.
For Appellant : Mr.C.Veeraraghavan
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2
For Respondents : Mr.K.Sudhakar
for R1 to R3
JUDGMENT
The plaintiffs are the appellants in this second
appeal.
2. The plaintiffs filed the suit seeking for the relief
of permanent injunction restraining the defendants from
interfering with the possession and enjoyment of the suit
property.
3. The case of the plaintiff is that the suit
property originally belonged to the father of the plaintiffs
through a registered sale deed dated 13.12.1933 marked as
Ex.A1. According to the plaintiffs, their father was in possession
and enjoyment of the properties till he died in the year 1988.
After his demise, the patta was transferred in the name of the
mother of the plaintiffs and she died in the year 2000. After her
demise, the plaintiff are in possession and enjoyment of the suit
properties.
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4. The further case of the plaintiffs is that the
defendants are their neighbours who are having properties on the
north east and the north west side of the suit property. Due to
heavy rains, the walls surrounding the suit property got damaged
and hence, the plaintiff wanted to renovate the walls. When this
process was started, the defendants prevented the construction
work. Aggrieved by the same, the suit was filed seeking for the
relief of permanent injunction.
5. The defendants filed a written statement. They
took a stand that there is north-south lane on the eastern side of
their properties and this lane was used by them to reach their
properties and it was a common lane for both the plaintiffs and
the defendants. They alleged that the plaintiff attempted to
block this lane and the same was questioned by the defendants.
Hence, the defendants sought for the dismissal of the suit.
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6. Both the Courts below on considering the facts
and circumstances of the case and on appreciation of the oral
and documentary evidence concurrently held against the
plaintiffs and dismissed the suit. Aggrieved by the same, the
plaintiffs have filed this second appeal.
7. Heard the learned counsel for the appellant and
the learned counsel for the respondent and this Court has also
carefully considered the materials available on record and the
findings rendered by both the Courts below.
8. This Court framed the following substantial
question of law :-
Whether both the Courts below after finding that
the plaintiffs have established title over the
property, failed to appoint an Advocate
Commissioner in order to elucidate the matter in
dispute and to determine as to whether the
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disputed wall falls within the property belonging
to the plaintiffs?
9. Both the Courts below concurrently found that the
plaintiffs have established their right and title over the suit
property. To arrive at such a conclusion, the original sale deed
marked as Ex.A1, the original patta in the name of the mother of
the plaintiffs marked as Ex.A2, the property tax receipts standing
in the name of the father of the plaintiffs, marked as Ex.A4 to A8
and the EB receipts standing in the name of the father of the
plaintiffs marked as Ex.A10 to A11, were taken into
consideration. Both the Courts below also found that the
defendants have not produced any documents to prove that they
are the owners of the adjacent property. The Courts below also
took into consideration Ex.A15 photographs which was admitted
by the defendants wherein the north-south lane was identified.
The defendants failed to prove that this lane was running inside
the property of the plaintiff. After having given such favourable
findings, both the Courts below dismissed the suit only on the
ground that the plaintiffs failed to establish that the wall was
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situated in the suit property and that no steps were taken by
them even to appoint an Advocate Commissioner to survey the
property as per the title documents and to submit a report.
10. In the considered view of this Court, both the
Courts below after having found that the plaintiffs have
established their right, title and possession over the suit
property, should have appointed an Advocate Commissioner to
ascertain whether the wall is falling within the suit property.
Even if the plaintiffs have not taken an application in this regard,
it is ultimately for the assistance of the Court to render an
effective finding, such Advocate Commissioner report is sought
for. In the present case, the purpose of appointing an Advocate
Commissioner is not to collect evidence and such a report is
required to help the Court for the purpose of elucidating the
matter in dispute. It is now too well settled that such Advocate
Commissioner can be appointed even in a suit for bare
injunction. The purpose of appointing an Advocate Commissioner
in a case was explained by this Court in [Kandipalayam
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Rajavaikkal Siru Vivasaiygal Neeretu Prasana Sangam
Vs.Nanjay Edayar Vivasaiyigal Sangam by its President,
N.M.Mayandi Gounder] reported in 2017 2 CTC 404. The
relevant portion in the judgement is extracted hereunder :-
It is obvious to note down here that the present case
is unique in its nature. It cannot be equated with the
other cases cited above. Insofar as the present case is
concerned, this Court would like to place it on record
that the provisions of Order XXVI Rule 9 CPC
envisages that in any suit in which the court deems a
local investigation to be requisite or proper for the
purpose of elucidating any matter in dispute, the court
may issue a commission to such person as it thinks fit
directing him to make such investigation and to report
thereon to the court. The intention of the legislators is
that, an Advocate Commissioner can be appointed
only for the purpose of elucidating any matter in
dispute by way of helping the Court which deems a
local investigation is absolutely necessary and proper.
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11. In view of the above discussion, this Court holds that
the Courts below ought to have appointed an Advocate
Commissioner to conduct a survey over the suit property as per
the title deeds and should have ascertained the location of the
disputed wall and thereafter, decided the case. The substantial
question of law is answered accordingly.
12. In the result, the judgement and decree of the
Lower Appellate Court is hereby set-aside. The matter is
remanded back to the file of the Sub Court, Pollachi and the
Lower Appellate Court is directed to appoint an Advocate
Commissioner to conduct a survey of the suit property based on
the title deeds of the plaintiffs and to file a report within a
stipulated time. If the parties want to file any objections for the
report, the same shall be permitted within a stipulated time. The
expenses for appointment of the Advocate Commissioner to
survey the suit property shall be borne by the plaintiff. The
Lower Appellate Court shall thereafter proceed to hear the
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appeal on merits based on the report of the Advocate
Commissioner and final judgement shall be passed on or before
30.06.2022. The Lower Appellate Court shall report compliance
after passing the final judgment.
13. Accordingly, this second appeal is allowed in the
above terms. Considering the facts and circumstances of the
case, there shall be no order as to costs. Consequently, the
connected miscellaneous petition is closed.
29.03.2022
Speaking Order
Index : Yes / No
Internet : Yes / No
rka
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N.ANAND VENKATESH.,J
rka
To
1. The Subordinate Judge, Pollachi
2. The District Munsif Court, Pollachi
Copy To:-
The Section Officer
VR Section, High Court
Madras.
SA.No.1024 of 2013
29.03.2022
https://www.mhc.tn.gov.in/judis
