Madras High Court
Syed Saleem vs Chelladurai on 5 February, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.R.P.(PD)(MD).No.1745 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.02.2025
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(PD)(MD).No.1745 of 2022
and CMP(MD).No.7651 of 2022
Syed Saleem ... Petitioner
-vs-
1.Chelladurai
2.Kanthiah
3.Pooliah
4.Kalep Pandiyan ...Respondents
PRAYER: The Civil Revision Petition has been filed under Article 227 of
Constitution of India, to set aside the fair and decreetal order dated
05.10.2021 passed in I.A.No.69 of 2016 in A.S.No.41 of 2015 on the file
of the Subordinate Judge, Kovilpatti.
For Petitioner : Mr.S.Pon Senthil Kumaran
For Respondent : Mr.C.Senthilmurugan for R4
: No appearance for R1 to R3
1/5
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)(MD).No.1745 of 2022
ORDER
The appellant in A.S.No.41 of 2015 on the file of the
Subordinate Court, Kovilpatti is the revision petitioner.
2.The revision petitioner herein as plaintiff has filed O.S.No.94
of 2012 on the file of the District Munsif Court, Kovilpatti for the relief of
permanent injunction for four items of property. The suit was dismissed by
the trial Court on the ground that the plaintiff has not established his
possession over any of the items. Challenging the same, the revision
petitioner has filed A.S.No.41 of 2015 before the Sub Court, Kovilpatti.
3.Pending first appeal, the revision petitioner as appellant had
filed I.A.No.69 of 2016 for appointment of advocate commissioner to note
down the fact that the defendants are having pathway rights not in
S.No.311 but in S.No.312. This application was resisted by the
respondents.
4.The trial Court after considering the submissions, found that in
a suit for bare injunction the appointment of the advocate commissioner is
wholly unjustifiable. Challenging the same, the present revision petition
has been filed.
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C.R.P.(PD)(MD).No.1745 of 2022
5.The learned counsel for the revision petitioner had contended
that the trial Court has arrived at a finding in paragraph No.13 of the
judgment to the effect that the defendants are claiming pathway rights over
S.No.311. Therefore, the plaintiff would like to establish it before the
Appellate Court that the defendants do not have any pathway rights over
S.No.311, but they are having their rights only over S.No.312. Hence, the
commissioner has to be appointed.
6.Per contra, the learned counsel for the respondents had
contended that it is for the plaintiff to establish his possession over
S.No.311 to get a decree. The defence taken by the defendants cannot be a
ground for appointment of Advocate Commissioner.
7.I have considered the submissions made on either side and
perused the material records.
8.The facts captured above will clearly indicate that the trial
Court had dismissed the suit filed by the plaintiff seeking permanent
injunction primarily on the ground that the plaintiff has not established his
possession over all the four items of the suit schedule properties on the
date of filing of the suit. Whether the defendants claims a right of pathway
over S.Nos.311 and 312 will not alter the burden of proof over the plaintiff
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)(MD).No.1745 of 2022
to establish his claim. In such circumstances, the appointment of the
advocate commissioner to find out whether the defendants are having
pathway right over S.No.311 is wholly unnecessary for adjudicating the
dispute between the parties. The First Appellate Court has rightly
dismissed the application.
9.In view of the above said deliberations, there are no merits in
the revision petition. This Civil Revision Petition stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
05.02.2025
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
msa
To
1.The Subordinate Judge, Kovilpatti.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)(MD).No.1745 of 2022
R.VIJAYAKUMAR, J
msa
C.R.P.(PD)(MD).No.1745 of 2022
05.02.2025
https://www.mhc.tn.gov.in/judis
