Madras High Court
Anjammal vs Muthuvairavan on 12 July, 2023
C.R.P.(MD)No.1718 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 12.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.1718 of 2018
and
CMP(MD)No.7365 of 2018
1.Anjammal
2.Palanivelan
Jeevanantham (died)
3.Ramamirtham ... Petitioners/Petitioners/Plaintiffs
Vs.
Muthuvairavan ... Respondent / Respondent / Defendant
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India, against the fair and decreetal order passed in I.A.No.205 of 2015
in O.S.No.63 of 2015, dated 01.09.2016, on the file of the District Munsif
Court, Pattukottai.
For Petitioners : Mr.D.R.Murugesan
For Respondent : Mr.V.Karna
for Mr. V.Ramamurthy
1/6
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C.R.P.(MD)No.1718 of 2018
ORDER
The instant Civil Revision Petition has been filed, against the
order passed in I.A.No.205 of 2015 in O.S.No.63 of 2015, dated
01.09.2016, on the file of the District Munsif Court, Pattukottai. The
revision petitioners herein are the plaintiffs and the respondent herein is the
defendant before the trial Court.
2. According to the petitioners they have sought for an
appointment of Advocate Commissioner, to note down the physical feature
on the ground that the suit property is not standing as a separate lot and it is
mingled with the other properties belonged to the plaintiffs. However, the
coconut trees planted in those lands are in the same line and same age,
therefore, to find out the physical feature of the suit property, they prayed
for an appoint of an Advocate Commissioner.
3. Per contra, the learned counsel for the respondent has strongly
objected the petition on the ground that the petitioner is attempting to prove
the possession through the appointment of Advocate Commissioner.
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C.R.P.(MD)No.1718 of 2018
4. After hearing both sides, the learned trial Judge has dismissed
the application by referring the judgment of this Court, reported in 2008-3-
CTC-597 (K.M.A.Wahab V. Eswaran). Wherein, this Court has held that an
appointment of Advocate Commissioner to prove the possession, cannot be
allowed. Therefore, the learned trial Judge has given a finding that the
petitioners attempted to prove the possession through appointment of
Advocate Commissioner and dismissed the application.
5. Aggrieved with the order of the learned trial Judge, the
revision petitioners / plaintiffs have come up with the instant application.
6. The learned counsel for the revision petitioners would submit
that they filed an application only to note down the physical features of the
lie of the suit property with the other properties of the plaintiffs, and also to
explain the standing of the coconut trees in the suit property and the age
and height of tree. He would further submit that the above aspect would be
more helpful to explain to the Court about the topography and the same
would obviate much oral evidence. Therefore, prayed to allow this
application.
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C.R.P.(MD)No.1718 of 2018
7. The learned counsel for the respondent objected the
application on the same ground as mentioned in the counter statement.
8. I have given my anxious consideration to the either side
submission.
9. This Court perused the averments of the petition and the plaint.
It is the specific submission of the plaintiffs that they are the owners of the
suit property and that they have been in possession of the suit property.
However, they filed this application for appointment of Advocate
Commissioner only to show that the grown up coconut trees are of the same
age and same height, which was planted in the suit property.
10. The learned counsel for the petitioners in the suit sought for a
relief of declaration and for permanent injunction. Here, the defence put
forth by the respondent is that the petitioners are attempting to prove the
possession by appointing an Advocate Commissioner. But, such a defence
could not be visualised from the affidavit, and what the petitioner want is to
explain the lie of the land along with standing crop. Therefore, their
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C.R.P.(MD)No.1718 of 2018
pleading of this petition are the plaint manifest the justification for
appointment of Commission. Further, the reasoning of the trial Judge, is
absent as to from which averments, he could find that the instant
application has been filed only to prove possession.
11. Therefore, this Court is of the firm view that the very order of
the learned trial Judge is liable to be interfered with. Hence, the instant
Civil Revision Petition is allowed, thereby, the order passed in I.A.No.205
of 2015 in O.S.No.63 of 2015, dated 01.09.2016, on the file of the District
Munsif Court, Pattukottai, is ordered to be set aside and the I.A.No.205 of
2015 is to be restored on file and the learned trial Judge is directed to
appoint an Advocate Commissioner within a period of two weeks from the
date of receipt of the copy of this order. There shall be no order as to cost.
Consequently, connected Miscellaneous Petition is closed.
NCC : Yes/No 12.07.2023
Index :Yes/No
Ls
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C.R.P.(MD)No.1718 of 2018
C.KUMARAPPAN.,J.
Ls
To
1.The District Munsif Court,
Pattukottai.
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
C.R.P(MD)No.1718 of 2018
12.07.2023
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