Madras High Court
Bhaskaran vs M.S.The Amalgamated Coal Fields ... on 7 August, 2023
C.R.P(MD)No.1526 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.08.2023
CORAM
THE HON'BLE MR.JUSTICE C.KUMARAPPAN
C.R.P(MD)No.1526 of 2018
and
C.M.P(MD)No.6642 of 2018
1.Bhaskaran
2.Raja Ayinan Pillai
3.Ramachandran ...Petitioners/Petitioners/
Plaintiffs
Vs.
M.s.The Amalgamated Coal Fields Limited,
Registered Office at Kolkata,
Represented by its,
Authorized Signatory,
C.Sitaram,
S/o.C.V.Chandrasekar,
Flat No.A3, Lawson Apartments,
Lawson's Road, Cantonment,
Tiruchirappalli-620 001. ...Respondent/Respondent/
Defendant
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
01.02.2018 in I.A.No.333 of 2017 in O.S.No.1442 of 2015 on the file of
the learned Principal District Munsif, Trichy.
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C.R.P(MD)No.1526 of 2018
For Petitioners : Mr.K.Govindarajan
For Respondent : Mr.M.Saravanan
ORDER
This civil revision petition has been filed against the order passed
by the learned Principal District Munsif, Trichy in I.A.No.333 of 2017 in
O.S.No.1442 of 2015, dated 01.02.2018.
2. The petitioners are the petitioners/plaintiffs and the respondent
herein is the respondent/defendant before the Court below.
3. For the sake of convenience, the parties will be referred as per
the litigative status before the Trial Court.
4. It appears that the petitioners/plaintiffs have filed a suit for
recovery of possession of the excess property described in the C schedule
in the suit. While the suit is pending, the petitioners/plaintiffs filed an
application for appointment of Commissioner to demarcate the limits of
the C schedule property and to draw a plan.
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C.R.P(MD)No.1526 of 2018
5. The said application was resisted by the respondent/defendant
on the ground that the plaintiffs/petitioners have no right or title or
interest in the suit property, and that the plaintiffs/petitioners already
filed a suit in O.S.No.973 of 2014 for injunction, wherein, he did not get
any leave to file the instant suit. Therefore, the present suit is hit by the
principles under Order 2 Rule 2 of C.P.C. It is also the submission of the
respondent/defendant that there is no C schedule property at all as stated
by the plaintiffs. It was also contended before the Trial Court that this
defendant/respondent is the owner of the property in S.F.No.8/7 to an
extent of 4.99 cents by virtue of registered sale deed, dated 21.11.1962.
Hence, the respondent/defendant prayed to dismiss the application.
6. After hearing either side, the Court below vide order dated
01.02.2018 has dismissed the application on the ground that when the
petitioner has sold the property long back about 30 years ago, filing the
application at the belated stage cannot be entertained, and that the similar
application in O.S.No.973 of 2014 was dismissed. Therefore, there is no
point in appointing the Commissioner in the instant application.
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C.R.P(MD)No.1526 of 2018
7. Aggrieved with the order of the Court below, the
petitioners/plaintiffs are before this Court.
8. The learned counsel for the petitioners herein would vehemently
submits that, after filing of the suit, the defendant has disputed the very
identity of the property. Therefore, it necessitated them to file an
application for an appointment of Commissioner to demarcate the C
schedule property and he also relied on the judgment of the Hon'ble
Supreme Court in the following cases:
(i) P.R.Chockalingam Vs M.Pichai and others reported in
2003-4-L.W.-77. The relevant portion of the order is extracted hereunder:
"17. An analysis of the above judgments would lead to
an irresistible conclusion that the appellate Court, while
considering the application for appointment of commissioner,
should not order the application for the sake of asking. Since
the power could be exercised judicially, the proper
application of mind to the facts of the case is essential before
either ordering or rejecting such application. No hard and
fast rule can be laid down that in all cases of application filed
for appointment of commissioner, that it should be only heard
along with the appeal and the Court should order the
appointment of commissioner only in the event it satisfies for
such commission during the hearing of the appeal. While the
question of identity of the property is pleaded, it would be
only proper for the Court to first collect the materials as to
the identity of the property by way of a report from the
commissioner to adjudicate the dispute at the time of hearing
of the appeal."
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C.R.P(MD)No.1526 of 2018
(ii) Sivagurunathan Vs Ramalingam and others reported in
(2005) 3 M.L.J. 525. The relevant portion of the order is extracted
hereunder:
"11. In the petition, the plaintiff has sought for
appointment of Advocate Commissioner to note down the
physical features and also to measure the suit property
with the help of surveyor and to submit a report with a
plan drawn to scale. But the learned District Munsif
dismissed the application on the ground that the
application has been filed seeking for issuance of
commission to note down the possession and the existence
of house. There is no proper exercise of discretion and the
impugned order suffers from serious infirmity. when the
location of the plaintiff's property and the extent is denied,
Commissioner ought to have been appointed for effectively
adjudicating the dispute. Report of the Advocate
Commissioner and the plan drawn to scale would
considerably reduce the oral evidence which aspect was
not taken into consideration by the lower Court.
12. When the controversy between the parties is
about the area of the land or the identification or the
location of the land, local investigation by a
Commissioner is necessary. It would clarify the location
and extent in which the plaintiff is in possession and
would explain any doubtful points on the evidence on
record. When there is a dispute over the extent, measuring
of the suit property with the help of Surveyor and the plan
thereon would considerably reduce the oral evidence. The
object of local investigation is to obtain evidence which
could be based on only from the spot and the inspection.
Report of the Advocate Commissioner would enable the
Court to properly and correctly understand and assess the
evidence on record in resolving the contentious points.
13. Issue of commission to find out the location of
22 cents viz., whether it is situated in S.No.151/16A or in
other survey number is a necessary one and it would not
amount to collection of evidence or factum of possession.
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C.R.P(MD)No.1526 of 2018
Where the dispute is regarding the extent of suit property,
the trial Court ought to have appointed the Commissioner
directing him to measure the suit property with the help of
a qualified Surveyor."
9. Per contra, the learned counsel for the respondent would submit
that the petitioners initially filed a suit for injunction in O.S.No.973 of
2014 and during the pendency of the said suit, they came with the instant
suit for relief of recovery of possession. It is also submitted by the
learned counsel for the respondent that the earlier suit in O.S.No.973 of
2014 has been dismissed for default. Therefore, he prayed to dismiss the
instant application.
10. I have given my anxious consideration to either side
submissions.
11. From the perusal of the record, it is apparent that the plaintiffs
have already filed a suit in O.S.No.973 of 2014 for a relief of injunction.
However, as submitted by the learned counsel for the respondent, the
said bare injunction suit was dismissed on 28.02.2019. But, while
perusing the plaint, this Court could not find any semblance of pleadings,
as to when onwards the defendant was in possession of the suit property
so as to get the delivery of possession from the defendant. As rightly
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C.R.P(MD)No.1526 of 2018
observed by the Court below, when the sale transaction took place long
back about 30 years ago between the plaintiffs predecessor in title and
the respondent, after period of three decades coming forward to measure
the property that too prior to prove his right of recovery of possession
from the defendant could not be entertained.
12. It is pertinent to mention here that if at all any demarcation of
the property required, it could be only at the time of taking delivery of
the property and not at this stage. The rulings referred by the learned
counsel for the petitioners are in respect of suit for injunction, and facts
in those reported cases are not similar to the case on hand. Therefore, this
Court is of the firm view that the order passed by the learned Trial Judge
rejecting the appointment of Commissioner could not be found fault
with.
13. In the result, this Civil Revision Petition stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
07.08.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
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C.R.P(MD)No.1526 of 2018
To
1.The learned Principal District Munsif,
Trichy.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1526 of 2018
C.KUMARAPPAN,J.
SN
C.R.P(MD)No.1526 of 2018
07.08.2023
https://www.mhc.tn.gov.in/judis
