Madras High Court
Indirani vs Kalpana on 3 July, 2023
CRP(PD)No.1123 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD)No.1123 of 2016
and C.M.P.No.6168 of 2016
Indirani ... Petitioner
(Represented by her Power of
Atttorney A.Vincent Devaraj)
Vs.
1.Kalpana
2.Selvaraj
3.Eswari
4.Mani ... Respondents
Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India
against the fair and decretal order dated 02.06.2015 made in I.A.No.1202 of 2014 in
O.S.No.134 of 2013 on the file of the Additional District Munsif Court, Poonamallee.
For Petitioner : Mr.S.Ganesh
For R2 to R4 : Mr.G.Radhakrishnan
ORDER
The Civil Revision Petition arises against the order dated 02.06.2015 passed in
I.A.No.1202 of 2014 in O.S.No.134 of 2013 on the file of the Additional District
Munsif Court, Poonamallee.
https://www.mhc.tn.gov.in/judis
CRP(PD)No.1123 of 2016
2. The plaintiff is the revision petitioner. The plaintiff seeks for declaration of
title to the 'C' schedule property and to direct the 1st defendant Sulochana to quit and
deliver the possession to her after removing the construction made by her. She also
seeks for permanent injunction restraining the defendants 2 to 4 from interfering with
her possession. Pending suit, the plaintiff moved an application in I.A.No.389 of 2013
for appointment of Advocate Commissioner. An Advocate Commissioner was
appointed and also filed a report on 06.01.2014. The plaintiff has filed her objections
on 28.02.2014. After a period of eight months, an application in I.A.No.1202 of 2014
was filed by the petitioner to re-issue the warrant to the same Commissioner to
re-inspect the property and to note down the alleged encroachment made by the 1st
defendant.
3. It is not the role of the Advocate Commissioner to find out whether there is
any encroachment or not. That is the essential duty of the Court, which shall do so
after recording the evidence and taking into consideration the Advocate
Commissioner's report. The essential function of the Court to find out whether there is
any encroachment cannot be delegated to the Advocate Commissioner. The learned
trial Judge has dismissed the application holding that the details of the occupants in
the suit property have been cited in the report. The learned trial Judge has granted
liberty to the petitioner to examine the Taluk Surveyor in order to substantiate the case
of the petitioner.
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CRP(PD)No.1123 of 2016
4. Learned counsel for the revision petitioner would submit that a recent
judgment of the Hon'ble Ms.Justice L.Victoria Gowri in the case of Pitchammal and
others vs. Sivaniyapillai Ammal and others reported in (2023) 3 MLJ 415 applies to
the facts of the case.
5. A careful perusal of the judgment would show that my learned sister had
granted permission for re-issuance of warrant on the ground that the revision
petitioners therein were set exparte and were not given an opportunity to represent
their case at the time of inspection by the Advocate Commissioner. That is not the
situation in the present case. At the time of inspection by the Advocate Commissioner,
one A.Vincent Devaraj, the power of attorney of the plaintiff was very much present
and that has also been recorded in the report.
6. The second judgment that the learned counsel for the revision petitioner
would rely upon is Kamala Devi vs. T.P.Manoharan reported in (2009) 1 MLJ 1334.
The said judgment also does not apply to the facts of the present case because that
was the case, where the plaintiff had attempted to put the construction over the
property of the defendant and there was a dispute with respect to the extent of the
property. In this particular case, there is no such dispute. The case of the plaintiff is
that she is the owner of the property and that 1st defendant has encroached the
property and put up construction. This requires the plaintiff to prove her title first over
https://www.mhc.tn.gov.in/judis
CRP(PD)No.1123 of 2016
the property, which is now under the occupation of the 1st defendant. Both these
judgments do not apply to the facts of the case.
7. In view of the above, I am not convinced with the submissions made by the
learned counsel for the petitioner and the Civil Revision Petition is dismissed. The
dismissal of the CRP will not prevent the learned counsel for the petitioner from
invoking the liberty granted by the trial Court for examination of the Taluk Surveyor
as well as the Advocate Commissioner. Learned counsel for the petitioner seeks leave
of this Court to file detailed objections to the Advocate Commissioner's report. The
said leave is granted and he shall file his objections within a period of two weeks
from today. On such filing, objections shall be taken on file.
8. With the above observation, the Civil Revision Petition stands dismissed. No
costs. Consequently, connected Miscellaneous Petition is closed.
03.07.2023
Index:Yes/No (3/3)
Speaking Order :Yes/No
Neutral Citation:Yes/No
kj
https://www.mhc.tn.gov.in/judis
CRP(PD)No.1123 of 2016
V.LAKSHMINARAYANAN,J.
kj
To
The Additional District Munsif
Poonamallee.
C.R.P.(PD)No.1123 of 2016
and C.M.P.No.6168 of 2016
03.07.2023
(3/3)
https://www.mhc.tn.gov.in/judis
