Madras High Court
R.Kanthimathi vs D.Premkumar on 29 October, 2024
C.R.P.No.4297 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.10.2024
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.4297 of 2024 &
CMP.No.23887 of 2024
1.R.Kanthimathi
2.S.Ramakrishnan .. Petitioners
Versus
D.Premkumar .. Respondent
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the fair and decretal order, dated 30.08.2024, made in
I.A.No.1 of 2022 in O.S.No.129 of 2022 by the Sub Court, Thiruvottiyur.
For Petitioner : Mr.R.Munuswamy
ORDER
This civil revision petition arises against an order passed by the
learned Subordinate Judge at Tiruvottiyur in I.A.No.1 of 2021 in
O.S.No.129 of 2022 dated 30.08.2024.
2. O.S.No.129 of 2022 was originally presented before the
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Subordinate Judge at Ponneri as O.S.No.27 of 2020. On account of the
creation of Subordinate Court at Thiruvottiyur, the said suit stood
transferred to the file of the Subordinate Court at Thiruvottiyur.
3. The relief sought for in the suit is for declaration that the plaintiff is
the owner of the schedule mentioned property and to direct the defendants
to quit and deliver vacant possession of the property after removing the
unauthorised constrcutions of a kitchen, staircase and borewell constructed
by the defendants on the northern side of the plaintiff's 'C' schedule
mentioned property.
4. A perusal of the plaint reveals that the entire extent of 3481 sq.ft.
has been shown as 'A' schedule. The plaintiff claims that he is entitled to
2325 sq. ft. and the defendants are entitled to 1156 sq. ft., out of the total
extent mentioned above. The plaintiff pleads that the defendants had
encroached an extent of 181 sq. ft. in 2325 sq.ft of his holdings.
5. The defendants entered appearance and filed a detailed written
statement.
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6. When the suit coming up before the learned Subordinate Judge,
Thiruvottiyur, the plaintiff filed an application for appointment of an
Advocate Commissioner to note down the physical features and
measurements of schedules 'A' to 'D' in the plaint, along with a taluk
surveyor. The said application was numbered as I.A.No.1 of 2022. Notice
was ordered to the defendants. The defendants filed a counter pleading that
the entire extent of 'A' schedule is not as stated by the plaintiff but consists
of 3600 sq.ft. In other words, the defendants claimed that there is an
additional extent available more than 3481 sq.ft., mentioned by the plaintiff.
It was further submitted that there is no road by name "Srinivasa Perumal
Koil 3rd Street". In fine, the plaintiff as well as the defendants seem to have
varying view on the extent, lie and identification of the property.
7. Considering the petition and counter, the learned Subordinate
Judge felt that if an Advocate Commissioner is appointed, it will asist the
court in order to decide the matter in issue. Hence, she allowed the
application.
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8. In order to prefer a revision against the said order, the defendants
filed a copy application seeking for certified copy of the order. Copy was
not issued with an endorsement "there is no order". Hence, I called for a
report from the learnd Subordinate Judge as to how when the petition and
orders have been isused stating that the application stood allowed, the
Registry of that court had not granted a certified copy of the fair and
decreetal order. I also requested the learned Subordinate Judge to send the
fair order passed by her in I.A.No.1 of 2022 in O.S.No.129 of 2022 dated
30.08.2024.
9. In compliance with the direction, the learned Subordinate Judge at
Thiruvottiyur has sent a report together with the fair order. She has pointed
out the mistake that has been committed by the registry of that Court and
given an assurance, if the copy application is represented, the fair and
decreetal order in I.A.No.1 of 2023 will be immediately furnished to the
counsel for the defendants.
10. Since the original of the order is before me, I went through the
same. I find that there is a dispute, as pointed out, with respect to lie,
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identity and extent of 'A' to 'D' schedule properties. The plaintiff pleads that
the extent of A schedule is only 3481 sq. ft., whereas the defendants plead
that it is 3600 sq.ft. Furthermore, they denied the existence of road named
"Srinivasa Perumal Koil 3rd street".
11. Where there is a dispute in identiy, or lie of the property and
extent, the Supreme Court in Haryana Waqf Board v. Shanti Sarup, (2008)
8 SCC 671 has held that it will be in the interest of both parties as well as
the Court to get a report of the Advocate Commissioner. The learned Judge
has in fact taken this view into consideration and has stated on account of
the nature of the suit and the reasons stated by the petitioner, she is inclined
to appoint a Commissioner, who will be assisted by a Taluk Surveyor.
12. The apprehension of Mr.R.Munuswamy is that the plaintiff is not
aware of the portion of the property which he is entitled to. This can be
easily addressed at the time of arguments in the suit. This is because, in
case, the plaintiff does not describe the immovable property in specific
terms, the Court can always take into cosndertion Order VII Rule 3 of the
Code of Civil Procedure and pass appropriate orders in the suit. However
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for the said purpose, there is no necessity to reject the appointment of an
Advocate Commissioner. This is especially when the learned Judge has felt
that appointment of Advocate Commisioner will assist the court in disposal
of the suit.
13. Therefore, I do not find any reason to take a different view than
that was taken by the learned Subordinate Judge at Thiruvottiyur in
I.A.No.1 of 2022 in O.S.No.129 of 2022 dated 30.08.2024. I make it clear
that after submitting the report, the court shall follow the dierctions given by
this Corut in Vemba Gounder v. Pooncholai Gounder, AIR 1996 MAD 347
in particular, paragraphs 30 and 31 of the said Judgment.
14. With the above observation, this civil revision petition is
dismissed. No costs. Consequently, the connected miscellaneous petition is
closed.
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Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
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To
The Sub Court, Thiruvottiyur.
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V.LAKSHMINARAYANAN, J.
nl
29.10.2024
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