Madras High Court
A.Muthusamy vs Semban on 30 March, 2022
C.R.P.(PD).No.2348 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P.(PD).No.2348 of 2017
and
C.M.P.No.11067 of 2017
1.A.Muthusamy
2.Kamala
3.Pachamuthu @ Danapal ... Petitioners
vs.
1.Semban
2.Muthusamy
3.Raja @ Marimuthu
4.Thangavel
5.Settu
6.Palanisamy
7.Sengodan
8.Krishnan
9.M.Subramanian
10.The Collector,
Salem, Salem District.
11.The Revenue Divisional Officer,
Mettur, Salem District.
12.The Tahsildar,
Omalur, Salem District. ... Respondents
1/9
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2348 of 2017
Civil Revision Petition filed under Article 227 of the Constitution of
India, against the fair and decreetal order dated 09.03.2017 made in
I.A.No.593 of 2015 in O.S.No.15 of 2014 on the file of the Sub Court, Mettur.
For Petitioners : Mr.N.Manokaran
For R8 : Ms.Thangavadhana Balakrishnan
For R10 – R12 : Dr.S.Suriya,
Government Advocate
ORDER
The plaintiffs in O.S.No.15 of 2014 on the file of the Sub Court at
Mettur, are the revision petitioners herein.
2. The said suit had been jointly tried along with O.S.No.179 of 2013.
3. O.S.No.179 of 2013, had been filed by 8 plaintiffs against 5 private
defendants and 6 official defendants, seeking a declaration with respect to the
title of the suit property and for a declaration declaring that a document
registered on 27.01.1962 as Document No.166 of 1962 on the file of the Sub
Registrar Office-I, Omalur, as null and void, and that the 8th defendant, who
had obtained mutation of the Revenue Records with respect to the suit
property, had done so unlawfully and also for permanent injunction.
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C.R.P.(PD).No.2348 of 2017
4. The First and Second defendants in O.S.No.179 of 2013 along with
yet another third party had filed O.S.No.15 of 2014 against the plaintiffs in
O.S.No.179 of 2013. They had also retained the official defendants who are the
District Collector, Salem, the Revenue Divisional Officer, Mettur and the
Tahsildar, Poonamallee.
5. This particular suit had been filed for declaration of title with respect
to a Temple called Kallanaiyar Temple and also for a direction, to open the
Temple by removing the lock put up in the said Temple and for permanent
Injunction.
6. The entire property is situated in Survey No.4/5 at Ammani
Singampatti Village, Omalur in Salem District.
7. The plaintiffs in O.S.No 179 of 2013, claim right over a larger area of
42 cents and the plaintiffs in O.S.No.15 of 2014, claim right over a smaller
portion of the said 42 cents, which measured 8 ½ cents out of the said 42 cents
and where it is claimed the aforementioned Temple is situated. They also claim
a right over the said Temple also. They are aggrieved that the Temple is locked.
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C.R.P.(PD).No.2348 of 2017
8. In the said O.S.No.15 of 2014, an application had been filed by the
plaintiffs under Order XXVI Rule 9 CPC for appointment of an Advocate
Commissioner to identify the Temple and to find out details regarding the said
Temple.
9. The said application had been dismissed by order dated 09.03.2017,
necessitating filing of the present revision petition.
10. Heard the learned counsel for the revision petitioners and also the
learned counsel for the respondents.
11. The learned counsel for the respondents raised a preliminary
objection stating that there was earlier direction for appointment of an
Advocate Commissioner, and that the revision petitioners/plaintiffs in
O.S.No.15 of 2013 are actually trying to obtain an order for the Temple to be
opened and that would be prejudice the interest of the plaintiffs in O.S.No.179
of 2013 who are the first-eighth defendants in O.S.No.15 of 2014.
12. The fact that there is a Temple is not in dispute. As a matter of fact, it
is also admitted by the plaintiffs that the fact that the Temple is locked is also
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C.R.P.(PD).No.2348 of 2017
not in dispute. It is therefore stated by the learned counsel that there is no
necessity for appointment of any Advocate Commissioner. It will only be an
exercise in futility.
13. The learned counsel for the revision petitioners however state that
appointment of an Advocate Commissioner is required primarily to find out the
fact about the existence of the Temple and the land over which it is situated.
14. The learned Sub Judge, Mettur, in the course of the impugned order,
had stated that, in case there is a doubt with respect to the 4 boundaries or with
respect to any of the physical features of the suit property, then, an Advocate
Commissioner can be appointed. But, the learned Sub Judge also observed that
there was no dispute with respect to either the four boundaries or with respect
to the identity of the property or with respect to the physical features.
15. It was therefore held the appointment of an Advocate Commissioner
is not required and it is was incumbent on the parties to let in evidence with
respect to the lay of the land and the existence or otherwise of the Temple and
the locking or otherwise of the Temple.
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C.R.P.(PD).No.2348 of 2017
16. Having heard both the learned counsels, and having perused the
imipugned order of the learned Sub Judge, Mettur, I am of the opinion, that at
this stage, particularly, when I am further informed that the trial had
commenced and P.W.1 had been examined and also cross examined and that
the suit is now posted next week for examination of further witness on the side
of the plaintiffs, the appointment of an Advocate Commissioner is not required
at this stage.
17. The learned Sub Judge is confident that, on the basis of the evidence
he/she can proceed to deliver judgment with respect to the issues raised and
issues framed for consideration. If at all, after recording the evidence of the
plaintiffs and the defendants, the learned Sub Judge is still of the opinion that
some assistance is required, to clarify factual issues, then such assistance can
be obtained by appointment of an Advocate Commissioner. Order XXVI Rule
9 CPC gives leverage to appoint an Advocate Commissioner, for such
clarification. If such clarifications are not required and evidence adduced by
the parties is sufficient then, the learned Sub Judge can proceed to deliver
judgment in the suit. If any clarification with respect to the lay of the land vis-
a-vis the Temple is required, then, an Advocate Commissioner can be
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C.R.P.(PD).No.2348 of 2017
appointed and if so appointed, an opportunity must also be granted to both the
parties to participate during the course of inspection and to file their
objections. If any report is filed, and if further clarifications are required, then
the Court can, if required, summon the learned Advocate Commissioner as a
witness.
18. These are steps to be taken by exercising judicial discretion by the
learned Sub Judge, Mettur. This Court cannot to step into the shoes of the Trial
Court and direct the manner in which the trial is to be conducted. I would leave
that to the wisdom and privilege of the learned Sub Judge to take a considered
decision, after the evidence of both the plaintiffs and the defendants are
recorded in entirety and analysed.
19. The Civil Revision Petition stands dismissed. However, the
dismissal of the Civil Revision Petition would not preclude, as aforesaid,
exercise of discretion by the learned Sub Judge for appointment of an
Advocate Commissioner if required, for tendering a just decision in the suit.
The learned Sub Judge may proceed further with recording evidence and
endeavor to dispose of the suit in the normal course on or before 31.10.2022.
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C.R.P.(PD).No.2348 of 2017
20. With the said observations, the Civil Revision Petition is dismissed.
Consequently, the connected miscellaneous petition is closed. No costs.
30.03.2022
Index:Yes/No
Speaking Order:Yes/No
ssi
To:
1.The Subordinate Judge, Mettur.
2.The Section Officer,
V.R.Section, High Court of Madras.
3.The Collector,
Salem, Salem District.
4.The Revenue Divisional Officer,
Mettur, Salem District.
5.The Tahsildar,
Omalur, Salem District.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2348 of 2017
C.V.KARTHIKEYAN, J.
ssi
C.R.P.(PD).No.2348 of 2017
30.03.2022
https://www.mhc.tn.gov.in/judis
