Madras High Court
P.Palanisamy vs Mallikasundaram on 17 October, 2024
C.R.P.No.1315 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.10.2024
CORAM
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.1315 of 2024 &
CMP.No.6961 of 2024
1.P.Palanisamy
2.S.Palanisamy : Petitioners
versus
Mallikasundaram : Respondent
Prayer: Petition filed under Article 227 of the Constitution of India seeking
to set aside the Judgement and decree passed by the District Munsif Court,
Rasipuram in IA No.7 of 2023 in OS No.62 of 2022 dated 06.11.2023.
For Petitioners : Mr.Nithesh Nataraj
For Respondent : Mr.B.Gopalakrishnan
ORDER
This civil revision petition is at the instance of the fifth and sixth
defendants in the suit O.S.No.62 of 2022.
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2. O.S No.62 of 2022 was presented before the District Munsif Court
at Rasipuram seeking for partition and separate possession. The claim of the
plaintiff is that the suit schedule mentioned the property was purchased by
one Periyakkal on 10.11.1954. During her lifetime, she had executed a
registered settlement deed in favour of the defendants 1 and 2 to an extent of
30 cents out of total extent of 89 cents with specified boundaries. The said
Periyakkal enjoyed the remaining extent till her death on 23.10.1971. She
left behind her husband Kaveri Nadar, daughters Alamelu, Pavayee,
Mallikasundaram, daughter-in-law Muthayee and the granddaughter Indrani
as her legal heirs.
3. The plaint proceeds that all the properties were jointly enjoyed by
the legal heirs. Periyakkal’s husband Kaveri Nadar passed away on
25.02.2002. The plaintiff attempted for reasonable settlement amongst the
legal heirs, but unfortunately did not bear fruit. Hence, she presented a suit
for partition seeking 1/4th share. The remaining 3/4th was to be divided
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equally among the third defendant, fourth defendant and the defendants one
and two in common. She alleged that the fifth and sixth defendants are
strangers to the family and want to knock off the property from her. She
lodged a police complaint which did not bear fruit as the police came to a
conclusion that the matter is civil in nature. Hence, the suit.
4. On service of summons, the third defendant entered appearance and
filed a written statement admitting to the relationship between the parties.
The third defendant also stated that the civil revision petitioner/defendants 5
and 6 are no way connected to the property. The written statement taken out
by the third defendant was adopted by the fourth defendant.
5. The fifth defendant filed a separate written statement, which was
adopted by the sixth defendant. According to the fifth defendant, Periyakkal
had two properties namely the properties situated at survey No.230/ 5C to an
extent of 32 cents and the suit schedule mentioned property. By an oral
partition between the plaintiff and the defendants, the property situated in
survey No.230/5C was allotted to the plaintiff, which she alienated in favour
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of a third party on 21.05.1996. They pleaded they constructed a temple
dedicated to Sri Kangeyathamman, pursuant to the agreement that they had
entered into with the third defendant on 21.11.1998. They further alleged
that for the temple, which had been constructed, the deceased Kaveri Nadar
had acted as a Poosari till his death. On these pleas, they sought for
dismissal of the suit.
6. Once the pleadings were completed, the fifth and sixth defendants
took out an application for appointment of an advocate commissioner to note
down the physical features of the suit property and to submit a rough plan
together with a report. The plaintiff resisted this application pleading that the
application for appointment of an advocate commissioner is not
maintainable and that, it is an attempt by the fifth and sixth defendants to
collect evidence in the suit. The submissions of the plaintiff was accepted by
the learned District Munsif, who dismissed the application for appointment
of Advocate Commissioner. Hence, this revision.
7. I have heard Mr.Nithesh Nataraj for Mr.Anirudh A Sriram and
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Mr.B.Gopalakrishnan for the contesting respondent.
8. Mr.Nithesh Nataraj submits that whether the temple is in existence
or not is a matter in dispute in the suit and for the said purpose, an Advocate
Commissioner ought to be appointed. He relied upon a judgment of this
court in Panjavarnam v. Visuvasam Jeyaseeli, 2013 SCC Online Mad 52.
In particular, he invites my attention to paragraph No.6 of the said judgment
to press home the point that locating the temple will not be an act of
collecting evidence.
9. Per contra, Mr.B.Gopalakrishnan invites my attention to the
affidavit filed in support of an application for appointment of an Advocate
Commissioner, in particular, paragraph Nos.3, 5 and 6 pointing out that the
petitioners themselves wanted a report of the Advocate Commissioner in
order to prove their case. Further he argues that the Advocate Commissioner
cannot be appointed in order to find out who is in possession of the property.
Hence, he pleads for the confirmation of the impugned order.
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10. I have carefully considered the arguments on both sides.
11. In a suit for partition, the issue that the Court would have to
answer, at the stage of preliminary decree, is whether the plaintiff is entitled
to a share in the property. There is no dispute, in this case, that the property
belonged to one Periyakkal. There is also no dispute about the relationship
between the plaintiff and the defendants 1 to 4. The ground, on which the
plaintiff claimed to her mother's property, is said to be defeated, on the plea
taken by the fifth and sixth defendants that there had been an oral partition in
the family and the plaintiff had been allotted survey No.230/5C only.
12. The plea of the plaintiff and the defence taken by the fifth and
sixth defendants is the matter in dispute. For the said purpose, an Advocate
Commissioner cannot be appointed. Whether there was an oral partition in
the family or not is a matter, which has to be proved by way of evidence. An
Advocate Commissioner by visiting the suit property cannot speak about the
said issue.
13. Even if I were to assume that the third defendant had entered into
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an agreement and put the defendants 5 and 6 in possession of the property, it
will not in any way affect the right of the plaintiff, if at all that she has one.
This because one co-sharer cannot alienate the entire extent in favour of a
stranger, unless and until the said co-sharer is able to prove that she or he
had obtained the property by way of partition. As pointed out above, the
issue of oral partition is a matter in dispute because there is no dispute that
Periyakkal was the owner, and she had died intestate and that the parties had
succeeded to the estate.
14. Turning to the authority cited by Mr.Nithesh Nataraj, it has to be
pointed out that the said judgment arose out of a suit for declaration and
permanent injunction claiming that the property is a vacant site. The
defendant in the said suit had pleaded that they are in possession of the
property by constructing a house. Therefore, the point in issue in that suit
was whether the property is a vacant land or is having a residential hut
situated therein. It was in those circumstances, the learned judge came to a
conclusion that an appointment of Advocate Commissioner to note down the
superstructure would be helpful to the Court to answer the matter in dispute.
Such a situation does not prevail in the present case.
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15. Furthermore, if an Advocate Commissioner were to visit the suit
property and submit a report as regards the superstructure situated therein, it
would be indirectly point out the possession and enjoyment of the same. It is
trite that an Advocate Commissioner cannot be appointed to find out as to
who is in possession of the property. In any event, the order appointing the
Advocate Commissioner is a discretionary order. Unless and until, the
discretion has been wrongly exercised, this Court should not interfere with
the same in revision. I do not thing that vice exists in the impugned order.
16. In the light of the above discussion, this civil revision petition is
dismissed. No costs. Consequently, the connected miscellaneous petition is
closed.
17. Mr.Nithesh Nataraj fears that any finding that might have been
given by this Court in this order may affect the merits of the case. It is made
clear that this revision dealt with only the scope of the application filed
under Order XXVI Rule 9 of the Code of Civil Procedure and none of the
finding rendered herein will affect the right of the parties to prove their
respective cases at the time of trial.
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17.10.2024
nl
Index : Yes/No
Speaking Order/Non speaking order
Neutral Citation : Yes/No
To
1.The District Munsif Court, Rasipuram
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V. LAKSHMINARAYANAN, J.
nl
17.10.2024
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