Madras High Court
Venkatesan vs Balasubramanian on 5 April, 2024
C.R.P.(MD)No.2031 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 29.02.2024
Pronounced on : 05.04.2024
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
C.R.P.(MD)No.2031 of 2019
and
C.M.P.(MD)No.10425 of 2019
Venkatesan ... Petitioner/
Petitioner/
Appellant
Vs.
Balasubramanian ... Respondent/
Respondent/
Respondent
Prayer : This Civil Revision Petition filed under Article 227 of the
Constitution of India, to allow the Civil Revision Petition and set aside the
decreetal order and fair order dated 01.08.2019 in I.A.No.384 of 2019 in
A.S.No.13 of 2018 on the file of the Sub Court, Thuraiyur.
For Petitioner : Mr.P.Prabhakaran
for Mr.N.Sudhagar Nagaraj
For Respondent : Mr.H.Lakshmi Shankar
1/10
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2031 of 2019
ORDER
The Civil Revision Petition is directed against the order passed in
I.A.No.384 of 2019 in A.S.No.13 of 2018 dated 01.08.2019 on the file of
the Subordinate Court, Thuraiyur, dismissing the application filed under
Order 26 Rule 9 of the Code of Civil Procedure.
2. The revision petitioner is the appellant/plaintiff and the
respondent is the respondent/defendant.
3. The revision petitioner has filed a suit in O.S.No.26 of 2008
against the respondent claiming permanent injunction restraining the
respondent from irrigating the lands not shown in the suit property from
the suit well. The respondent has filed a counter claim claiming
declaration that the respondent is entitled to irrigate the lands shown in the
counter claim from the suit well and for permanent injunction restraining
the revision petitioner and his men from damaging the pipelines and
interfering with the respondent taking water through pipelines. After full-
trial, the revision petitioner's suit was dismissed and the respondent's
counter claim was allowed vide judgment and decree dated 22.01.2018.
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Aggrieved by the decree granted in the counter claim, the revision
petitioner has preferred an appeal and the same is pending in A.S.No.13 of
2018 on the file of the Subordinate Court, Thuraiyur. Pending appeal, the
revision petitioner has filed the present application in I.A.No.384 of 2019
under Order 26 Rule 9 C.P.C. seeking appointment of Advocate
Commissioner to inspect the suit property and file a report regarding the
non-existence of pipelines in and across and through the lands of the
revision petitioner shown in the suit. The respondent has filed a counter
statement raising serious objections. During enquiry, the respondent has
filed a legal notice sent by him and a reply notice sent by the revision
petitioner as Ex.R1 and Ex.R2 respectively. The learned appellate Judge,
upon considering the pleadings and other materials available on record
and on hearing both the sides, has passed the impugned order dated
01.08.2019 dismissing the commission application. Aggrieved by the
order of dismissal, the appellant has preferred the present revision.
4. The case of the revision petitioner, in the affidavit filed in support
of the commission application, is that after the passing of judgment and
decree by the trial Court, the respondent has been trying to innovate a
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right by cutting across and planting pipelines through and across the
revision petitioner's lands for the purpose of irrigating his lands, which do
not form Ayacut under the suit well, that the respondent himself has made
an admission in the course of his evidence that there is no pipeline across
the revision petitioner's property, that the respondent has now approached
the police at Uppiliyapuram and with their help has been trying to plant
pipelines in and across the revision petitioner's property, that the very
purpose of filing the appeal will be defeated, if the respondent is permitted
to lay pipelines, that the trial Court's approach in granting a decree is
opposed to all canons of law, that the revision petitioner was advised that
he has a fair chance of success in appeal with a good arguable case before
the appellate Court and that the appointment of Advocate Commissioner is
very much necessary to inspect the suit property and file a report with
regard to non-existence of pipelines.
5. The defence of the respondent is that the suit well was owned by
one Thasi naidu and after his demise, by his two sons, namely,
Bangarusamy naidu and Muralidharan, that both of them have executed a
sale deed dated 16.07.1997 giving common half share in the well and in
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5HP motor pump set and electricity connection and also right to take water
by laying pipelines under the lands in Survey Nos.434/5, 6, 8, 10 and 12
and through Survey No.434/14 and take water to the lands situated in
Survey Nos.412/4, 7, 8, 9, 13, 14, 15A, 15B and 16, that immediately after
the purchase, pipelines has been laid and irrigation was going on through
the pipelines, that the revision petitioner was not having any right in the
suit well at that point of time, that the respondent's brother has purchased
in 1997 only after laying of the pipelines, but the revision petitioner has
purchased half share in the suit well from the said Bangarusamy naidu and
Muralidharan only on 11.01.2001, that the revision petitioner has
absolutely no right to question the rights given under Ex.A.3-sale deed
dated 16.07.1997 after purchasing half share in 2001, that since the
revision petitioner has been interfering with the respondent's possession,
the respondent was constrained to file the counter claim, that since the
revision petitioner has caused crop loss for the period between 2008 and
2018, the respondent has sent the legal notice dated 11.05.2018 claiming
compensation, for which, the revision petitioner has sent the reply notice
dated 12.06.2018 with false and untenable allegations, that the present
application has been filed only to drag on the appeal proceedings and that
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the present application has been filed only to cause loss and hardship to
the respondent and as such, the same is liable to be dismissed.
6. As already pointed out, the revision petitioner's suit for bare
injunction was dismissed, whereas, the respondent's counter claim with
regard to reliefs of declaration and permanent injunction was allowed.
7. The main contention of the revision petitioner is that after the
passing of the judgment and decree by the trial Court, the respondent has
been attempting to lay pipelines across the revision petitioner's lands for
the purpose of irrigating the respondent's lands, which do not form Ayacut
under the suit well. As rightly contended out by the learned counsel
appearing for the respondent, even in the counter claim they have claimed
that the respondent's brother has purchased the property, after laying of the
pipelines in the year 1997, but whereas, the revision petitioner has
purchased the half share only in the year 2001 and that the trial Court has
already gone into those facts and passed the judgment.
8. The learned appellate Judge, after going through the judgment
and decree of the trial Court, has specifically observed that the trial Court
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has granted permanent injunction restraining the revision petitioner and
his men from interfering or disturbing the respondent from taking water
from the suit well in Survey No.434/3 but his land situated in Survey Nos.
412/4, 7, 8, 9, 13, 14, 15A, 15B and 16 and also granted permanent
injunction restraining the revision petitioner and his men from causing
damages or from causing interference in any other manner for the revision
petitioner using the pipelines in the lands situated in Survey Nos.412/4, 7,
8, 9, 13, 14, 15A, 15B and 16 and has come to a finding that underground
pipelines were already there and if the revision petitioner is having a
definite case that there were no pipelines, he should have claimed before
the trial Court for appointment of Advocate Commissioner at that time
itself, but admittedly, he has not taken any such steps. Though the revision
petitioner has alleged that the respondent himself in his evidence has
admitted that there was no pipelines, the appellate Court, after going
through the evidence, has observed that the respondent has not made any
such admission. The revision petitioner has not canvassed any acceptable
reason or ground for appointment of Advocate Commissioner at the
appellate stage. Considering the above facts and circumstances, the
impugned order of the appellate Court dismissing the commission
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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.
9. In the result, this Civil Revision Petition is dismissed and the
impugned order passed in I.A.No.384 of 2019 in A.S.No.13 of 2018, dated
01.08.2019 on the file of the Subordinate Court, Thuraiyur, stands
confirmed. Since the appeal is pending from 2018 onwards, the learned
Subordinate Judge, Thuraiyur, is directed to hear the appeal in A.S.No.13
of 2018 and dispose of the same within a period of two months from the
date of receipt of a copy of this order. Consequently, connected
Miscellaneous Petition is closed. No costs.
05.04.2024
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
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To
1. The Subordinate Judge,
Thuraiyur.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
K.MURALI SHANKAR,J.
csm
Pre-Delivery Order made in
and
Dated :05.04.2024
https://www.mhc.tn.gov.in/judis
