Madras High Court
S.Subbiah vs The Taluk Office on 26 September, 2023
C.R.P.(MD).No.2558 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(PD)(MD)No.2558 of 2017
and
C.M.P(MD) No.11907 of 2017
1. S.Subbiah
2. S.Ramanujam ... Petitioners/Petitioners/Plaintiffs
-vs-
1. The Taluk Office,
Nanguneri,
Represented through its Tahsildar,
Tirunelveli District.
2. The Government of Tamil Nadu,
Represented through its District Collector,
Tirunelveli District,
Kokkirakulam,
Tirunelveli.
3. N.Nambi
4. N.Nagammal ... Respondents/Respondents
Defendants
(The Respondents 3 and 4 ex-parte before the
trial Court, hence, notice on them may dispense with)
1/7
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.2558 of 2017
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and decreetal order dated 04.10.2017
passed in I.A.No.675 of 2017 in O.S.No.84 of 2012 on the file of the Sub
Court, Valliyoor.
For Petitioners : Mr.H.Arumugam
For Respondents : Mr.M.Senthil Ayyanar
Government Advocate
For R1 and R2
: Exparte – for R3 and R4
ORDER
The instant Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and decreetal order dated 04.10.2017
passed in I.A.No.675 of 2017 in O.S.No.84 of 2012 on the file of the Sub
Court, Valliyoor.
2. The petitioners herein are the plaintiffs and the respondents are the
defendants before the Court below.
3. The learned Counsel appearing for the petitioners would contend that
the trial Court has dismissed the Commission application, on the ground that
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C.R.P.(MD).No.2558 of 2017
there is no issue in respect of identity of the property and that in a suit for
declaration, the parties have to prove their ownership and possession by
letting documentary and oral evidence and therefore, an appointment of
Commission is erroneous and dismissed the application.
4. It is also pertinent to mention here that the respondents 1 and 2 have
also made an endorsement for no objection. In spite of that, the trial Court has
dismissed the application. Aggrieved with the order, the petitioners are before
this Court.
5. It is the submission of the learned counsel for the petitioners that
there is an issue in respect of the Survey No.680/5 of Chengalaakurichi
Village. The learned counsel for the petitioners would further submit that
though the suit property is within the admitted four boundaries, the
defendants disputed the S.F.Number. Therefore, to prove that the suit property
is within the said S.F.Number, appointment of an Advocate Commissioner is
essential.
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C.R.P.(MD).No.2558 of 2017
6. In this regard, the learned counsel appearing for the petitioners has
also relied upon the judgment of Hon'ble Supreme Court reported in 2000 (6)
Supreme 389 (Shreepat Vs. Rajendra Prasad and others).
7. Per contra, the learned Government Advocate appearing for the
respondents 1 and 2 would submit that the very application has been filed at a
belated stage, that too, when the suit was pending for cross-examination of
P.W.2. Therefore, he would submit that the very application has been filed to
delay the suit proceedings. Hence, he prayed to dismiss the Civil Revision
Petition.
8. This Court has given it's anxious consideration to the submissions of
the learned counsel appearing for the petitioners and the learned Government
Advocate appearing for the respondents 1 and 2.
9. Before embarking into the disputed facts of the case, this Court
deems it appropriate to refer to the judgment relied on by the learned counsel
for the petitioners. In the judgment of the Hon'ble Supreme Court reported in
2000 (3) MLJ 84 (Shreepat vs. Rajendra Prasad and others), the Hon'ble
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C.R.P.(MD).No.2558 of 2017
Supreme Court has held that whenever there is a dispute in respect of the
identity of the property, more specifically in respect of the S.F.Number, then
to identify the correct S.F.Number, appointment of Advocate Commissioner
along with Surveyor is essential.
10. The learned Counsel for the petitioners has also relied upon another
judgment of the Hon'ble Supreme Court reported in 2017 4 SCC 617 (Ravish
and another vs. R.Bharathi), wherein the Hon'ble Supreme Court while
disposing of the Civil Appeal has held that whenever there is a disputed fact
in respect of the suit property, the Hon'ble Supreme Court held that it is
appropriate to appoint an Advocate Commissioner to get the exact location on
the disputed site.
11. Therefore, what emerges from the above ratio is that whenever
there is a dispute in respect of the identity of the property, more specifically in
respect of S.F.Number, then the appointment of Advocate Commissioner is
necessary for the ultimate solution to find out and resolve the issue more
lucidly.
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C.R.P.(MD).No.2558 of 2017
12. Therefore, this Court is of the view that the finding of the Court
below in repelling the prayer of the petitioners is erroneous. Therefore, this
Court is inclined to interfere with the order of the Court below.
13. In the result, this Civil Revision Petition stands allowed and
thereby, the learned Sub Judge, Valliyoor, is directed to appoint an Advocate
Commissioner along with Surveyor. Considering the suit is of the year 2012,
the Court below is directed to dispose of the suit in O.S.No.84 of 2012 as
expeditiously as possible. There shall be no order as to costs. Consequently
connected Miscellaneous Petition is closed.
26.09.2023
NCC : Yes/No 2/2
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Sub Court,
Valliyoor.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.2558 of 2017
C.KUMARAPPAN,J.
ebsi
C.R.P(PD)(MD)No.2558 of 2017
26.09.2023
https://www.mhc.tn.gov.in/judis
