Madras High Court
K.V.Subburaman vs N. Dharmalingam on 13 August, 2024
CRP No.948 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.08.2024
CORAM
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
CRP No.948 of 2024 &
CMP.No.4750 of 2024
1.K.V.Subburaman
2.V. Chinnasamy : Petitioners
versus
1.N. Dharmalingam
2.Prema
3.Thangamani
4.Santhi
5.Raja Gokul
6.Sanjeevi : Respondents
Prayer: Petition filed under Article 227 of the Constitution of India to set
aside the fair and decreetal order dated 23.11.2023 in IA.No. 4 of 2023 in
OS.No. 52 of 2013 on the file of the Additional District Munsif Court,
Pollachi
For Petitioners : Mr.C.RPrasanan
For Respondents : No appearance
Page 1 of 9
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CRP No.948 of 2024
ORDER
This civil revision petition arises against the order of the learned
Additional District Munsif at Pollachi in I.A.No.4 of 2023 in O.S.No.52 of
2013 dated 23.11.2023.
2. O.S.No.52 of 2013 is a suit for bare injunction restraining the
defendants from interfering with the plaintiff's peaceful possession and
enjoyment of the suit schedule property. The schedule of the suit is extracted
hereunder:
“ ,jd; kj;jpapy; 6 tpl;lk; nghl;l 5 m';fz nkw;F fpHf;F
thryha; nky; Tiu ,y;yhky; rpf;!;jhd tpy;iytPLk;. ,jd;
Kd;g[wk; nkw;F thryha; ,oe;J nghd fil tPlha; $hfht[k;
gpd;g[ak; cs;s fhyp ,lKk; rpf!;jhf nfhg;g[ rkhd; tifawhf;fs;/”
3. According to the plaintiffs, his father came by the property by
virtue of sale deed dated 15.03.1962. Thereafter, in a partition that had been
entered into between the family members of the plaintiffs, a larger portion
including the suit property had been allotted to him on 16.12.2010. They
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would state that the defendants who are neighbours have no right, title or
interest over the suit schedule property. They would plead that the said
passage exclusively belongs to the plaintiffs and the defendants have
attempted to create a non-existing right over the pathway.
4. On entering appearance, the defendants filed a detailed written
statement. According to them, they purchased the property in 1972 and in
the said document, in addition to the property purchased by them, they were
also entitled to use the pathway which is mentioned as a suit property.
5. After the evidence of both sides were over, when the matter was
posted for arguments, an application was filed for appointment of an
Advocate Commissioner to measure the suit property on the basis of the sale
deed dated 15.03.1962, partition deed dated 16.12.2010 and the sale deed
of the defendants dated 14.02.1972. This application was received in
I.A.No.4 of 2023.
6. The learned Subordinate Judge issued notice in the said application.
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The objection of the defendants 1 to 3 with the other defendants 4 to 7
remaining exparte was that the suit has been pending for the past ten years
and no effort had been taken by them to take out an application for
appointment of an Advocate Commissioner. In addition on the merits of the
case, they would state that their house is facing south along with the right to
use the front yard to reach the road on the eastern side. They would plead
that their property is an old one and the superstructure has not changed in
all those years. They would plead that they have marked the photographs to
substantiate the same. They would plead that the plaintiffs have encroached
upon the property which is the front yard left for their use.
7. The learned Trial Judge dismissed the application on grounds of
delay as well as on the ground of whether the passage falls within the area
of the plaintiffs or whether the defendants also have the right has to be
proved only by way of documents, against which the present revision.
8. This matter came up for admission before this Court on
24.04.2024. Notice was issued to the respondents. The respondents were
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served with notice on 29.04.2024 privately and the court notice was served
on 09.05.2024. Despite both modes of service, there is no representation for
the contesting respondents.
9. Mr.C.Prasanan would argue that whether the lie of the property can
be found out only if an Advocate Commissioner is appointed. He would
plead that the pathway to an extent of 12 feet on the north-eastern side of
the property had been left out by the plaintiffs for their convenient
enjoyment.
10. In addition to the argument, a perusal of the plaint also shows that
the specific plea of the plaintiffs is that the pathway is situated within the
four boundaries of their property.
11. Per contra, from the counter of the defendants, it is clear that they
would plead that the front yard was left open and their extent of the property
is about 41 x 19 sq.ft.
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12. The issue that has to be decided in the suit is whether the pathway
falls within the plaintiffs' property or whether it is outside the plaintiffs'
property over which the defendants would also have the right.
13. Insofar as the title of the plaintiffs and the defendants are
concerned, to their respective portions are not in dispute. The dispute relates
only to the vacant land abutting both the property. No doubt there has been
considerable delay on the side of the plaintiffs in moving the application.
However, I am not inclined to dismiss the revision on that ground. This is
because a report from the Commissioner will assist the Court at the time of
pronouncing the judgment in the suit.
14. The Trial Court would necessarily have to answer on the extent of
the plaintiffs' property and the extent of the defendants' property and
whether the pathway falls in common or whether it falls exclusively in the
property of the plaintiffs. Since there is a dispute with respect to where the
pathway lies, I feel if an Advocate Commissioner goes and visits the
property, and submits a report, it would enable the Court to decide the issue
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in a proper perspective.
15. In the light of the above discussion, the order in I.A.No.4 of 2023
in O.S.No.52 of 2013 dated 23.11.2023 is set aside. The learned Additional
District Munsif, Pollachi shall appoint an Advocate Commissioner, who is
sufficiently well versed on the civil side. The Commission need not take the
assistance of the Government surveyor as he is irrelevant. The
Commissioner shall measure the property on the basis of the two sale deeds
namely 15.03.1962 and 14.12.1972 and submit a report to the court.
16. It is made clear that both the parties will not be entitled to let in
fresh evidence on the basis of the Commissioner's report. After receipt of the
Commissioner's report, the Court shall take into consideration the report and
render a judgment in the suit.
17. With the above direction, this civil revision petition is allowed. No
costs. Consequently, the connected miscellaneous petition is closed.
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13.08.2024
nl
Index : Yes/No
Speaking Order/Non-speaking order
Neutral Citation : Yes/No
To
The Additional District Munsif Court,
Pollachi
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V.LAKSHMINARAYANAN, J.
nl
13.08.2024
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