Madras High Court
D.Kumar vs Surgi Devi on 2 January, 2024
C.R.P.No.936 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.01.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CRP.No.936 of 2021 and
CMP.No.7581 of 2021
D.Kumar ... Petitioner
Vs.
1.Surgi Devi
2.Minor Teenusri
3.Minor Achoot
4.The Sub-Registrar
Tiruttani
Tiruvallur ...Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
India, praying to set aside the order dated 22.12.2020 passed in I.A.No.615 of
2018 in O.S.No.142 of 2014 by the Hon'ble District Munsif, Tiruttani.
For Petitioner : Mr.S.Mohan
For Respondents 1 to 3 : M/s.L.Dhamodaran
For respondent 4 : Mr.V.Jeeva Giridharan
Addl. Govt. Pleader(CS)
ORDER
The revision petition is filed challenging the order passed by the Court
below dismissing the application filed by the petitioner seeking appointment of
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Advocate Commissioner to inspect the suit property, measure the same and file
a report noting down the encroachments if any.
2. The petitioner herein filed a suit seeking declaration of his title over
suit B schedule property and for permanent injunction to restrain the
respondents 1 to 3 from alienating the suit B schedule property. The petitioner
also sought for mandatory injunction directing the respondents 1 to 3 to
remove the 1st floor wall of their building which was built on the suit B
schedule property.
3. According to the petitioner, he is an absolute owner of the suit A
schedule property having purchased the same under registered sale deed dated
17.06.2010 from its owners P.Ramachandran and R.Leelarani. It is also
averred by the petitioner that as per his title documents, he is the owner of
Southern wall of his property and the same is described as B schedule in the
plaint. The respondents, without having any manner of right over the B
schedule property, had put up construction on the southern wall of the
petitioner which was described as B schedule property and therefore, the
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petitioner is constrained to file a suit for the above said reliefs.
4. Pending the suit, the petitioner filed an application for appointment of
Advocate Commissioner to measure the suit property and the property of the
respondents on the southern side of the suit property and find out the extent of
encroachment by the respondents over the suit B schedule property. The said
application was resisted by the respondents on the ground that earlier,
respondents preferred a suit for injunction against the petitioner and in that
earlier suit, two Advocate Commissioners' reports were filed and hence, the
appointment of Advocate Commissioner is not at all necessary in the present
suit.
5. The Trial Court, on considering the averment of the petitioner as well
as the respondents, came to the conclusion that in view of the availability of
two reports filed in earlier suit between the parties, there is no need for
appointment of another Advocate Commissioner in this suit and consequently
dismissed the petition. Aggrieved by the same, the petitioner is before this
Court.
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6. The learned counsel for the petitioner submitted that the petitioner
sought for mandatory injunction for removal of the construction made by the
respondents encroaching the portion of the suit B schedule property and hence,
the exact measurement of the encroached portion is absolutely necessary to
resolve the dispute between the parties.
7. The learned counsel for the respondents vehemently opposed this
revision on the ground that earlier, Advocate Commissioner visited the property
twice and filed two reports in the earlier suit for injunction filed by respondents
and hence, the appointment of Advocate Commissioner in the present suit is
not at all necessary. The learned counsel also submitted that Advocate
Commissioner cannot be appointed to enable a party to gather evidence and
appointment of Advocate Commissioner in a subsequent suit is not at all
necessary. In support of his contentions, the learned counsel of the respondents
relied on following judgments:-
i) Chinnan Vs Marappan reported in (2004)1 M.L.J.651.
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ii) D.Kuttiyappan and others Vs Meenakshiammal Polytechnic Unit
of M/S.Meenakshiammal Trust represented by its Managing
Trustee,A.H.Radhakrishnan and another reported in (2005)4 CTC 676.
iii)Chandrasekaran and others Vs V.Doss Naidu reported in (2005) 3
M.L.J.473.
iv)Chinnathambi and others Vs Anjalai reported in (2007)1
M.L.J.513.
v) Elango Vs Kasthuri reported in (2009) 5 CTC 706.
8. The petitioner herein filed a suit for declaration of his title over suit B
schedule wall and for injunction restraining the respondents 1 to 3 from
alienating the suit B schedule property. He also sought for mandatory
injunction directing the respondents 1 to 3 to remove the 1st floor wall of their
building which was built on suit B schedule property. When the petitioner
seeks removal of alleged encroachment made by the respondents, the exact
measurement of the encroached portion is absolutely necessary to resolve the
dispute between the parties. As per the plaint averment, the respondents have
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encroached B schedule wall and put up their 1 st floor wall on B schedule wall.
In these circumstances, it may not be possible for the petitioner to enter the
property of the respondent and measure the exact encroachment made over the
suit B schedule property. Hence, the only way open to the petitioner is to seek
appointment of Advocate Commissioner to measure the properties of both the
parties with reference to their title deeds and file a report pointing out the
encroachments, if any. Therefore, when the petitioner is not in a position to
give a correct extent of the encroachment made on his property owing to the
construction made by the respondents over the suit B schedule wall, the
appointment of Advocate Commissioner is absolutely necessary to find out the
exact measurement of encroachment, if any, made by the respondents. Earlier,
in the suit of for injunction filed by the respondents, Advocate Commissioner
visited the suit property and filed his report. The reports filed in the earlier suit
are produced in the typed set of papers filed by the respondents dated
07.07.2021. The earlier reports have not been filed based on the measurement
made with reference to the title documents of respective parties. Therefore, the
Advocate Commissioner's report and plan filed in earlier injunction suit by the
respondents may not be useful to resolve the dispute in the present case. In
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these circumstances, the order passed by the Court below dismissing the
application for appointment of Advocate Commissioner to measure the
properties of both the parties is liable to be set aside.
9. The application filed by the petitioner in I.A.No.615 of 2018 is
allowed by directing the Court below to appoint an Advocate Commissioner
directing him to measure the properties of both the parties with reference to
their title deeds and find out the encroachments, if any, in the B schedule
property and file a report with exact measurement of the alleged encroachment.
10. Accordingly, the Civil Revision Petition stands allowed with the
above directions. Consequently, connected miscellaneous petition is closed. No
costs.
02.01.2024
Index : Yes / No
Internet : Yes / No
nr
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S.SOUNTHAR , J.
nr
To
The learned District Munsif, Tiruttani.
and
02.01.2024
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