Madras High Court
Kalidas vs Balamurugan on 23 November, 2023
C.R.P.(MD)No.1798 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.11.2023
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
C.R.P.(MD)No.1798 of 2022
and
C.M.P.(MD)No.8004 of 2022
Kalidas ... Petitioner
Vs.
1. Balamurugan
2. Pagampriyal
3. Alagesan ... Respondents
Prayer : This Civil Revision Petition filed under Article 227 of the
Constitution of India, to call for the records and set aside the fair and
decreetal order dated 20.06.2022 in I.A.No.9 of 2021 in A.S.No.36 of
2018 on the file of the Subordinate Judge, Tiruchendur and allow this
Civil Revision with costs.
For Petitioner : Mr.G.Prabhu Rajadurai
For R1 & R2 : Mr.M.P.Senthil
For R3 : No appearance
1/6
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C.R.P.(MD)No.1798 of 2022
ORDER
The Civil Revision Petition is directed against the order passed in
I.A.No.9 of 2021 in A.S.No.36 of 2018 dated 20.06.2022 on the file of the
Subordinate Court, Tiruchendur, dismissing the application for
appointment of commissioner.
2. The revision petitioner/plaintiff has filed a suit in O.S.No.130 of
2015 claiming declaration that the suit property is belonging to him and
for permanent injunction restraining the respondents/defendants from any
manner interfering with the peaceful possession and enjoyment of the suit
property. The respondents/defendants have filed their written statement
disputing the title canvassed by the revision petitioner/plaintiff and
claimed title over the property. The learned trial Judge, after trial, has
passed a judgment and decree dated 06.01.2018 dismissing the suit.
Aggrieved by the dismissal of the suit, the revision petitioner/plaintiff has
preferred an appeal in A.S.No.36 of 2018 and the same is pending on the
file of the Subordinate Court, Tiruchendur. Pending appeal, the revision
petitioner/ plaintiff has filed an application in I.A.No.9 of 2021 for
appointment of commissioner to measure the suit property with the help of
the surveyor and file a report and plan. The learned trial Judge, taking note
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of the objection raised by the respondents/defendants, has passed the
impugned order dismissing the application. Aggrieved by the dismissal of
the commission application, the present revision came to be filed.
3. It is the specific case of the revision petitioner/plaintiff that the
suit property was originally belonged to one Meerapen Rotriko, that the
revision petitioner/plaintiff purchased the property from one Balamurugan,
who in turn purchased the property from one Rengarajan, who in turn
purchased the property from one Muthaiah, who in turn purchased the
property from the original owner Meerapen Rotriko and that since the
revision petitioner/plaintiff has been in possession of the property and the
respondents/defendants have been interfering with his possession, he was
constrained to filed the above suit claiming the reliefs of declaration and
permanent injunction.
4. The revision petitioner/plaintiff in the plaint has specifically
furnished the property purchased by him which admeasures 10 cents of
land with specific 4 boundaries.
5. The defence of the respondents/defendants is that one Natchiyar
Ammal has purchased the property from the said Meerapen Rotriko and
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the respondents 2 and 3/defendants 2 and 3 have purchased western 4.77
cents and eastern 4.78 cents of the properties from the said Natchiyar
Ammal and that they have been in possession and enjoyment of the
property as the owners of the same.
6. The main contention of the revision petitioner/plaintiff is that
since the trial Court has specifically observed that the property was not
properly identified, the revision petitioner/plaintiff was forced to file the
above application for identifying the suit property.
7. The learned trial Judge, by specifically observing that the
respondents/defendants have proved that the sale deed under Ex.A.4 has
no connection with the property situated in Survey No.223/1H and that
since the revision petitioner/plaintiff has failed to prove that they have
purchased the suit property situated in Survey No.223/1H under Ex.A.4,
has come to a decision that the revision petitioner/plaintiff is not entitled
to get the reliefs of declaration and consequential permanent injunction
and dismissed the suit.
8. As rightly contended by the learned counsel appearing for the
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respondents 1 and 2, the revision petitioner/plaintiff cannot be permitted
to gather evidence in the appeal stage.
9. Moreover, the learned appellate Judge, by observing that there is
absolutely no dispute with regard to the identity of the property and that
when the appeal is pending from 2018, the above application came to be
filed to cause unnecessary delay, dismissed the application.
10. Considering the entire facts and circumstances of the case and
also taking note of the fact that the above application came to be filed after
4 years from the filing of the above appeal and that too for gathering
evidence, the impugned order dismissing the application cannot be found
fault with. Hence, this Court concludes that the revision is devoid of merit
and the same is liable to be dismissed.
11. In the result, this Civil Revision Petition is dismissed.
Consequently, connected Miscellaneous Petition is closed. No costs.
23.11.2023
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
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K.MURALI SHANKAR,J.
csm
To
1. The Subordinate Court,
Tiruchendur.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
Order made in
and
Dated : 23.11.2023
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