Madras High Court
J.Kottammal vs V.Lakshmanan on 2 September, 2024
C.R.P. (PD) No.3456 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.09.2024
CORAM
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P. (PD) No.3456 of 2024
and C.M.P.No.18744 of 2024
J.Kottammal ... Petitioner
Vs.
V.Lakshmanan ... Respondent
PRAYER: Civil Revision Petition filed under Article 227 of the Code of
Civil Procedure, against the fair and decretal order dated 05.01.2024 made in
I.A.No.3 of 2023 in O.S.No.105 of 2021 on the file of the Principal District
Munsif Court, Perambalur.
For the Petitioner : Mr.R.T.Vishnu
ORDER
This Civil Revision Petition is at the instance of the plaintiff. He
presented the suit in O.S.No.105 of 2021 on the file of the Principal District
Munsif, Perambalur.
2. On service of summons, the defendant filed his written statement
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and counter claim. In his counter claim, he has specifically pleaded that the
plaintiff has encroached upon the property that belongs to him.
Consequently, he sought for recovery of possession of the said extent of 2
feet X 28 ½ feet. Thereafter, he took out an application for appointment of an
Advocate Commissioner. The said application stood allowed. Hence, the
revision.
3. Heard, Mr.R.T.Vishnu, for the Civil Revision Petitioner.
4. Mr.R.T.Vishnu would submit that in the nature of a suit and counter
claim, it is the duty of the plaintiff to prove the encroachment by letting oral
and documentary evidence and cannot seek for appointment of an Advocate
Commissioner to note down the physical features of the property by filing an
application. The learned counsel would rely upon the Judgment of this Court
in Selvamariammal Vs. Kanagavel (2018 SCC OnLine Mad 7587).
5. I have carefully considered the arguments of the learned counsel for
the petitioner.
6. Mr.R.T.Vishnu is correct in the proposition, with respect to the title.
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It is the duty of the respondent herein as the petitioner in the counter claim,
to prove the same. However, there is a dispute on the extent of the properties
of the plaintiff and the defendant.
7. It is the case of the plaintiff that the 57 feet on which he has laid a
concrete pathway belongs to him and falls within the four boundaries of his
property. Whereas it is the case of the defendant that the said pathway falls
within his portion of the property. Since there is dispute over the
measurements of the property, the learned Trial Judge in his discretion felt
that an Advocate Commissioner ought to be appointed.
8. I do not find any error in the said view taken by the learned Judge,
this is because, a picture would come before the Court only on physical
measurements of the property by an Advocate Commissioner. Further, there
is no dispute that the plaintiff admits that the defendant is the owner of the
adjacent property.
9. In so far as the Judgment referred to above, in paragraph No.16 of
the said Judgment, makes it clear that if the learned Trial Judge felt that,
during the course of trial, it is necessary for appointment of an Advocate
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Commissioner, it should do so suo motu, without waiting for an application
by either party.
10. In the impugned order, the learned Trial Judge has given cogent
reasons, as is clear from page Nos.17 and 18 of the typed set of papers. In
fact, he has followed the view taken by the learned Judge in the aforesaid
Judgment, because, the stage of the suit is cross examination of P.W.1. At that
stage, the learned Trial Judge had felt that an Advocate Commissioner will
help the Court to elucidate the matter in issue and thereby assist him in
rendering the Judgment.
11. Therefore, the reasons being valid, I do not find any necessity to
interfere with the order. Accordingly, this Civil Revision Petition stands
dismissed. No costs.
02.09.2024
Jer
Index : Yes / No
Internet : Yes / No
Speaking order / Non-speaking order
Neutral citation : Yes / No
https://www.mhc.tn.gov.in/judis
To
The Principal District Munsif, Perambalur.
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN, J.,
Jer
02.09.2024
https://www.mhc.tn.gov.in/judis
