Madras High Court
Rajagopal (Died) vs Krishnan ....1St on 6 February, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.R.P.(PD)(MD).No.1823 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.02.2025
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(PD)(MD).No.1823 of 2022
and CMP(MD).No.8207 of 2022
1.Rajagopal (died) ...Petitioner/Petitioner/Appellant
/1st Defendant
2.Savithri
3.Nisha
4.Ram Nishand ... Legal heirs of deceased
1st petitioner
(Petitioners 2 to 4 are brought on record
as LRs of the deceased sole petitioner
vide order dated 06.02.2025)
-vs-
1.Krishnan ....1st Respondent/1st Respondent
/1st Respondent/Plaintiff
2.Vijayaragavan .... 2nd Respondent/2nd Respondent
/2nd Respondent/2nd Defendant
PRAYER: The Civil Revision Petition has been filed under Article 227 of
Constitution of India, to set aside the fair and decreetal order dated
04.07.2022 passed in I.A.No.1 of 2019 in A.S.No.9 of 2018 on the file of
the II Additional Subordinate Court, Nagercoil and allow the present civil
1/6
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C.R.P.(PD)(MD).No.1823 of 2022
revision petition.
For Petitioners : Mr.R.J.Karthick
For Respondents : Mr.S.Palanivelayutham for R1
: No appearance for R2
ORDER
The first defendant in O.S.No.67 of 2014 on the file of the
Principal District Munsif Court, Nagercoil, Kanyakumari is the revision
petitioner.
2.The first respondent in the revision petition as plaintiff has
filed the above said suit for the relief of declaration that he has got a right
of easement by prescription over 'B' schedule pathway. The plaintiff has
further prayed for a permanent injunction restraining the defendants from
blocking or altering the nature of 'B' schedule pathway and denying the
pathway right of the plaintiff over 'B' schedule pathway. The plaintiff has
further prayed for a mandatory injunction as against the first defendant to
remove the granite wall which obstructs the plaint 'B' schedule pathway.
3.The defendants in their written statement have contended that
'B' schedule property is their private property and there is no pathway at
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C.R.P.(PD)(MD).No.1823 of 2022
all. They have further contended that the plaintiff do not have any right of
easement over 'B' schedule pathway.
4.The trial Court after considering the oral and documentary
evidence has decreed the suit as prayed for. Challenging the same, the
defendants had filed A.S.No.9 of 2018 before the II Additional
Subordinate Court, Nagercoil.
5.Pending appeal, the defendant/appellant had filed I.A.No.1 of
2019 for appointment of an Advocate Commissioner to inspect the suit
property to find out the existence of 'B' schedule property. This application
was resisted by the plaintiff contending that is a vexatious application and
the defendant is attempting to bring in new evidence. The Appellate Court
had dismissed the said application on the ground that when the pathway
has been blocked in the year 2014, no purpose would be served in
appointing an advocate commissioner in the year 2022 to find out the
existence of the pathway. The said order is put to challenge in the present
civil revision petition.
6.According to the learned counsel for the petitioner, the trial
Court in Paragraph No.12 of the judgment had shifted the burden upon the
defendants to establish the fact that there is no other pathway for the
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C.R.P.(PD)(MD).No.1823 of 2022
plaintiff and therefore, they are constrained to file such an application
before the First Appellate Court.
7.Per contra, the learned counsel for the respondents had
contended that the trial Court after considering the oral and documentary
evidence has arrived at a finding that 'B' Schedule property is a pathway
and the plaintiff is having easementary right over the said pathway.
Therefore, the appointment of the advocate commissioner is not necessary.
8.I have considered the submissions made on either side and
perused the material records.
9.From the prayer sought for in the plaint, it could be found that
the plaintiff admits title of the defendants over 'B' schedule property and
claims right of easement by prescription to use a pathway in the said
property. In such circumstances, the entire burden would be upon the
plaintiff to establish that 'B' schedule property is a pathway and they are
having right of easement by prescription over the said pathway. In such
circumstances, the appointment of the advocate commissioner will not be
of any assistance to the First Appellate Court. Therefore, there are no
merits in the civil revision petition.
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C.R.P.(PD)(MD).No.1823 of 2022
10.With the above said observations, this Civil Revision Petition
stands dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
06.02.2025
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
msa
To
1. The II Additional Subordinate Judge, Nagercoil
2. The Principal District Munsif, Nagercoil, Kanyakumari
3.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.1823 of 2022
R.VIJAYAKUMAR, J
msa
C.R.P.(PD)(MD).No.1823 of 2022
06.02.2025
https://www.mhc.tn.gov.in/judis
