Madras High Court
A.Natesan vs Chinnappan on 4 January, 2024
C.R.P.(PD).No.2567 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.R.P.(PD).No.2567 of 2021
and CMP.No.19080 of 2021
A.Natesan ... Petitioner
vs.
Chinnappan
... Respondent
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India, praying to set aside the judgment and decree dated 15.09.2021 made in
I.A.No.3 of 2021 in O.S.No.181 of 2021 on the file of the learned Subordinate
Court, Mettur by allowing this Civil Revision Petition.
For Petitioner : Mr.N.Manoharan
For Respondent :Mr.M.R.Jothimanian
1/6
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2567 of 2021
ORDER
This Civil Revision Petition is filed challenging the order passed
by the Court below appointing an Advocate Commissioner to visit the suit
property and note down the physical features.
2. The respondent herein filed a suit for bare injunction on the
ground that the suit property was allotted to his share in the family partition
dated 30.04.1984 and he was in exclusive possession and enjoyment of the
suit property. The said suit was resisted by the petitioner herein by filing
written statement, wherein it was stated by him that the suit property lying in
Thoramangalam Village was not partitioned and the same was kept as
common property. Therefore, it was the contention of the petitioner that he is
in joint possession of the suit property along with the respondent.
3. The petitioner herein filed I.A.No.3 of 2021, seeking the
appointment of Advocate Commissioner to visit the suit property and note
down the physical features. In the affidavit filed in support of the petition
seeking appointment of Advocate Commissioner, it was averred by the
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respondent that the petitioner herein was making an attempt to interfere with
his possession by picking up frequent quarrels. The petitioner herein filed a
counter affidavit and opposed the application on the ground that the suit is for
bare injunction and the Advocate Commissioner cannot be appointed to find
out the physical possession of the properties. It was also averred by the
petitioner in his counter that the right and possession of the respondent over
the suit property should be proved by him by leading oral and documentary
evidence and appointment of Advocate Commissioner is not at all necessary.
The Court below after considering the rival submissions of the parties came to
the conclusion that the appointment of Advocate Commissioner is necessary
to find out whether there was any partition between the parties with regard to
the suit properties or not. It was also observed that the suit is not posted for
trial and hence the appointment of Advocate Commissioner would not cause
any prejudice to the petitioner.
4. The present suit is only for bare injunction, it is settled law in
a suit for bare injunction, the plaintiff has to prove his exclusive possession by
leading independent evidence and appointment of Advocate Commissioner
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cannot be made to find out the physical possession of the properties. A
perusal of the pleadings of the respective parties would indicate that there is a
controversy with regard to the fact of partition. The respondent/plaintiff
claimed that the suit property was allotted to his share in the family partition.
However, the petitioner herein claims that the suit property which is lying in
Thoramangalam Village was not partitioned and it was kept as common
property in the family partition. Whether the suit property was partitioned or
not is a matter to be decided based on the recitals found in the registered
partition deed entered between the parties and to decide the said fact, the
appointment of Advocate Commissioner is not necessary. Merely because
appointment of Advocate Commissioner will not cause any prejudice to the
petitioner herein, the application for appointment of Advocate Commissioner
cannot be ordered. The party seeking appointment must make out a case for
need for such appointment.
5. The respondent who seeks appointment of Advocate
Commissioner must establish that appointment of Advocate Commissioner for
local inspection will help the Court to decide the controversy involved in the
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suit. However, as mentioned above, in a suit for bare injunction, the
respondent/plaintiff has to establish his exclusive possession by leading
evidence and appointment of Advocate Commissioner cannot be made to find
out the physical possession of the parties. Therefore, the impugned order
passed by the Court below is set aside and the Civil Revision Petition stands
allowed.
6. Having regard to the fact that the suit is the of the year 2021,
the Court below is directed to dispose of the suit as expeditiously as possible.
7. Accordingly, this Civil Revision Petition is disposed of. No
costs. Consequently, connected miscellaneous petition is closed.
04.01.2024
Index : Yes / No
Speaking order : Yes / No
Neutral Citation : Yes / No
ub
To
The Subordinate Court, Mettur
https://www.mhc.tn.gov.in/judis
S.SOUNTHAR, J.
ub
04.01.2024
https://www.mhc.tn.gov.in/judis
