P.Sivakumar vs R.Natarajan
2023 Latest Caselaw 8709 Mad

                                                                                       C.R.P(MD)No.1730 of 2023


                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                        DATED : 20.07.2023

                                                              CORAM

                                  THE HONOURABLE MRS JUSTICE K. GOVINDARAJAN
                                                THILAKAVADI

                                                    C.R.P(MD)No.1730 of 2023
                                                              and
                                                    C.M.P(MD)No.8624 of 2023


                      1.P.Sivakumar
                      2.Vasuki                                           ... Petitioners/Petitioner/
                                                                         Appellants/Defendants

                                                                  Vs.

                      R.Natarajan                                          ... Respondent/Respondent/
                                                                         Respondent/Plaintiff

                                  Civil Revision Petition is filed under Article 227 of the Constitution
                      of India, to call for the records relating to the impugned fair and decreetal
                      order dated 21.04.2023 made in I.A.No.1 of 2022 in A.S.No.25 of 2022 on
                      the file of the Sub-Court, Theni, set aside the same and allow this Civil
                      Revision Petition.


                                        For Petitioners           :Mr.K.Appadurai
                                        For Respondent            :Mr.S.Sivathilakar


                                                              ORDER

The Civil Revision Petition is filed against the fair and decreetal order

dated 21.04.2023 passed in I.A.No.1 of 2022 in A.S.No.25 of 2022 by the

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1730 of 2023

Sub-Court, Theni.

2.According to the petitioners, the respondent/plaintiff filed a suit in

O.S.No.46 of 2016 for declaration of title and for recovery of possession in

“B” schedule property and for permanent injunction. During the pendency

of the said suit, the respondent/plaintiff filed an application under Order 26

Rule 9 and Section 151 of C.P.C., for appointment of an Advocate

Commissioner to measure the suit property and to identify the encroachment

as per the title deed of the respondent. Without knowing the recitals in

Ex.A1 title deed, the Advocate Commissioner along with surveyor filed

their report.

3.The said report was objected on the side of the revision petitioners

by stating that the suit property was not properly measured. However, the

contention of the revision petitioners was rejected and moreover the

Advocate Commissioner, Surveyor along with defendants for examining in

respect of the report filed by the Advocate Commissioner. The said suit was

decreed by the trial Court. Against which, the revision petitioner herein

preferred an appeal in A.S.No.25 of 2022 and during the pendency of the

appeal suit, the revision petitioner took out another application in I.A.No.1

of 2022 before the Sub-Court, Theni, for appointment of an Advocate

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1730 of 2023

Commissioner, to survey and measure the suit property.

4.The said application was resisted on the side of the

respondent/plaintiff by stating that without scraping the earlier report, fresh

application for appointment of an Advocate Commissioner for the second

time, is not maintainable.

5.The Appellate Court, considering the arguments put-forth on either

side, dismissed the said application stating that without scraping the earlier

report, the petition is not maintainable. Accordingly, dismissed the petition.

Against which, the present revision is filed.

6.Heard the learned counsel appearing for the petitioners and the

learned counsel appearing for the respondent and perused the materials

available on record.

7.The learned counsel appearing for the revision petitioners submitted

that the Advocate Commissioner, Revenue Officials and the trial Court

failed to peruse the recitals of Ex.A.1 document, which disclose the fact that

the respondent/plaintiff has purchased 5 cents and there is a pre-condition in

the schedule to Ex.A.1 that he cannot put up construction in the entire

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1730 of 2023

property, after leaving two feet on northern side from north-south. He

further submitted that the respondent/plaintiff is violated the aid recitals

without leaving two feet on northern side, put up a compound wall and

made a false pleading in the suit as if two feet pathway is beyond the

compound wall of the respondent/plaintiff. Due to which, a criminal

complaint was also preferred by the revision petitioners against the

respondent/plaintiff in C.C.No.310 of 2016 on the file of the learned

Judicial Magistrate, Theni, in which, he was convicted for encroaching into

the property of the revision petitioners and for causing damage to the

property. The learned counsel further submitted that the trial Court failed to

see that the encroachment made by the respondent/plaintiff as pleaded by

the petitioners herein in a proper perspective way and without analyzing the

requirement of report of the Advocate Commissioner, erroneously dismissed

the application filed by the revision petitioners.

8.On the other hand, the learned counsel appearing for the

respondent/plaintiff would contend that since the trial Court relied upon the

report of the Advocate Commissioner in passing the judgment and decree, it

was inappropriate and unjust to scrap report of the Advocate Commissioner

and appoint new Advocate Commissioner in the Appellate Court. To support

his contention, he has relied upon the decision of this Court reported in

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1730 of 2023

(2020)1 MLJ 844 in Subbaiah-vs-Sivaperumal.

9.As pointed out by the learned counsel appearing for the

respondent/plaintiff that based on the earlier report of the Advocate

Commissioner, judgment and decree was passed by the trial Court, at that

time, the revision petitioners have not taken any steps to scrap the report

filed by the Advocate Commissioner. Therefore, it is irregular and illegal to

appoint a second Advocate Commissioner before scrapping the report of the

first Advocate Commissioner report and it is always open to the petitioners

to file an appropriate petition for re-issuing the warrant to the first Advocate

Commissioner.

10.Considering the above facts, the Court below has rightly dismissed

the application and does not warrant any interference by this Court. Hence,

this Civil Revision Petition is dismissed. No costs. Consequently, connected

miscellaneous petition is closed.

20.07.2023

NCC:Yes/No Index:Yes/No Internet:Yes/No Ns

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.1730 of 2023

K.GOVINDARAJAN THILAKAVADI, J.

Ns

To

1.The Sub-Court, Theni,

2.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.

C.R.P(MD)No.1730 of 2023 and C.M.P(MD)No.8624 of 2023

20.07.2023

https://www.mhc.tn.gov.in/judis