Madras High Court
Ashokan vs Pushpanathan (Died) on 5 April, 2023
C.M.A.(MD).No.1516 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.1516 of 2013
and
M.P(MD) No.1 of 2013
Ashokan .....Appellant/Respondent/Plaintiff
-vs-
1. Pushpanathan (died)
2. Philomina Mary .... Respondents/Appellants/Defendants
3. Victoria
4. Josephin Sagayarani
5. Gracy Lourdhu Mary
6. Francies Raja .... Proposed Respondents 3 to 6
(Respondents 3 to 6 are brought on record as the LRs of
the deceased 1st respondent vide order dated
30.02.2018 made in C.M.P(MD) No.8050 of 2018
in C.M.A(MD) No.1516 of 2013)
PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1 (u) of
C.P.C., against the order of remand made by the judgment and decree, dated
05.02.2013, made in A.S.No.36 of 2010, on the file of the Principal District
Judge, Tiruchirappalli, reversing the judgment and decree, dated 11.11.2009,
made in O.S.No.250 of 1998 on the file of the District Munsif Court, Musiri.
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C.M.A.(MD).No.1516 of 2013
For Appellant : Mr.G.Sridharan
For Respondents : Mrs.Maria Roseline
for R2, R3, R5 and R6
: No appearance – For R4
JUDGMENT
The plaintiff in a suit for permanent injunction with regard to “A”
Schedule property and mandatory injunction with regard to “B” Schedule
property, has filed the present appeal challenging the order of remand passed
by the first appellate Court.
2. The present appellant had filed O.S.No.250 of 1998, on the file of
District Munsif Court, Musiri, for the relief of permanent injunction not to
disturb the possession and for a mandatory injunction to remove the stair case
wall and building portion put up by the defendants in the “B” Schedule
Property.
3. According to the plaintiff', “B” schedule property forms part of “A”
schedule property. Before the trial Court, two Advocate Commissioners were
appointed to note down the physical features of the property and their report
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C.M.A.(MD).No.1516 of 2013
and plan have been marked as Ex.C1 to Ex.C.4. The Surveyor's sketch has
been marked as Ex.C.5. The trial Court, after considering the oral and
documentary evidence, has decreed the suit as prayed for.
4. Challenging the above said judgement and decree, the defendants
had filed A.S.No.36 of 2010, on the file of the Principal District Court,
Tiruchirappalli. Pending appeal, the defendants/appellants had filed I.A.No.
23 of 2013 with the prayer for re-issuance of warrant to the Advocate
Commissioners to measure the actual measurement of the plaintiff's property
and the defendants property with reference to the title deeds and old survey
sketch of the property with the help of a Surveyor.
5. The first appellate Court had arrived at a finding that originally, the
plaintiff has not claimed mandatory injunction by filing the suit. Only on the
basis of the Commissioner's Report, the plaintiff's had amended the suit
prayer and introduced the prayer for mandatory injunction. The encroached
portion has been fixed by the plaintiff only on the basis of the Commissioner's
Report. However, the encroachments have not been ascertained on the basis
of the sale deeds of either parties. Therefore, the first appellate Court felt that
the Commissioner has to be appointed to ascertain whether the stair case/
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C.M.A.(MD).No.1516 of 2013
constructions put up by the defendants are well within their own limits or
constructed by encroaching upon the plaintiff's property. The first appellate
Court further felt that the measurements have to be made with reference to the
old survey numbers and the corresponding new survey number. For the
purpose of appointment of an Advocate Commissioner, the first appellate
Court had remitted the matter back to the trial Court. This order of remand is
under challenge in the present Civil Miscellaneous Appeal.
6. According to the learned counsel appearing for the appellant, for the
purpose of re-issuance of warrant to an Advocate Commissioner, it is not
necessary to remit the matter back to the trial Court. He further contended that
the defendants who had an opportunity before the trial Court to file such an
application had not exercised such a right. Therefore, the defendants cannot
be permitted to file such an application before the first appellate Court. The
defendants having lost an opportunity before the trial Court, cannot make a
second attempt before the first appellate Court.
7. The learned counsel appearing for the appellant had further
contended that the first appellate Court remitted the matter back to the trial
Court without setting aside any one of the findings of the trial Court.
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C.M.A.(MD).No.1516 of 2013
Therefore, he prayed for allowing the appeal and to set aside the order of
remand.
8. Per contra, the learned counsel appearing for the respondents had
contended that originally, the plaintiff had filed only a suit for permanent
injunction. Only after filing the Commissioner's report, wisdom dawned upon
the plaintiff that some portion of the property has been encroached upon by
the defendant and thereafter, the plaint was amended to include the prayer for
mandatory injunction. The said prayer is solely based upon the
Commissioner's report. The trial Court has only relied upon the
Commissioner's report and has granted the prayer for mandatory injunction
without properly appreciating the sale deeds of either of the parties.
9. The learned counsel appearing for the respondent had further
contended that the constructions were not of recent origin and hence, the
introduction of mandatory injunction prayer itself is barred by limitation.
However, the said issue was not properly appreciated by the first appellate
Court. Hence, she contended that the order of remand for the purpose of
appointment of an Advocate Commissioner is perfectly valid and she prayed
for sustaining the order of remand.
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C.M.A.(MD).No.1516 of 2013
10. I have carefully considered the submissions made by the learned
counsel on either side.
11. A perusal of the judgment of the first appellate Court makes it clear
that the plaintiff has introduced a prayer for mandatory injunction after filing
of the Commissioner's Report. The first appellate Court had felt that the
Commissioner has to re-visit the property and measure the property with
reference to the old and new survey numbers on the basis of the sale deeds of
the either of the parties. The said exercise could very well be carried out by
the first appellate Court itself. Paragraph Nos.14 and 15 of the order of the
first appellate Court would indicate that the trial Court was directed to
consider the I.A.No.23 of 2013, and to re-issue the warrant to the Advocate
Commissioner directing him to inspect the property with the help of a
qualified Surveyor and to measure the property of both parties with reference
to the old and corresponding new survey numbers and after receipt of the
Commissioner's report and objections, if any, to the report, the Court shall
decide the matter afresh.
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C.M.A.(MD).No.1516 of 2013
12. The above direction issued by the Appellate Court clearly indicates
that the order of remand has been passed only for the purpose of re-issuance
of warrant to the Advocate Commissioner. I.A.No.23 of 2013 cannot be
remitted by the first appellate Court. Therefore, the order of remand passed by
the first appellate Court is hereby set aside. The first appellate Court is
directed to consider the I.A.No.23 of 2013 on merits and in accordance with
law. In case, if the Court arrives at a finding that the re-issue of warrant to the
Advocate Commissioner, is necessary, the same can be ordered by the first
appellate Court itself. After receiving the report and the objection for the
Advocate Commissioner's Report, the first appellate Court can do well to
proceed to hear the appeal on merits.
13. With the above said observations, this Civil Miscellaneous Appeal
stands allowed. There shall be no order as to costs. Consequently, connected
Miscellaneous Petition is closed.
05.04.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
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C.M.A.(MD).No.1516 of 2013
To
1. The Principal District Judge,
Tiruchirappalli.
2. The District Munsif Court,
Musiri.
3. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD).No.1516 of 2013
R.VIJAYAKUMAR,J.
ebsi
C.M.A.(MD)No.1516 of 2013
05.04.2023
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