Madras High Court
S.Jaibalaji vs Lakshmi on 10 January, 2025
C.R.P.No.5332 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.01.2025
CORAM
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P.No.5332 of 2024
and
C.M.P.No.29617 of 2024
S.Jaibalaji .. Petitioner
vs
1.Lakshmi
2.G.Ethiraj .. Respondents
Petition filed under Article 227 of the Constitution of India to
against the fair and final order dated 18.10.2024 made in I.A.No.1
of 2020 in O.S.No.875 of 2022 on the file of the learned
Subordinate Judge, Katpadi, Vellore District.
For Petitioner : Mr.R.Vasudevan
ORDER
The plaintiff is the civil revision petitioner. He impugns the
order passed by the learned Subordinate Judge at Katpadi in
I.A.No.1 of 2020 in O.S.No.875 of 2022 dated 18.10.2024.
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2. The plaintiff originally presented the suit before the learned
Subordinate Judge at Katpadi, Vellore. He sought for the following
reliefs:
(a) declare the registered sale deed dated
31.03.2003 as null and void;
(b) grant an order of permanent injunction
against the defendant restraining him, his men,
servants, staff, agents, assigns, heirs, successors-in-
interest, representatives, authorized persons,
relatives, others etc., from alienating or creating any
type of encumbrance over the suit property;
(c)Directing the defendant to pay the plaintiffs
the costs of this suit and other ancillary proceedings;
and
(d) Grant such further or other reliefs, as this
Honourable Court may deem it fit and proper, just
and necessary.
3. The claim of the plaintiff is that the property originally
belonged to the second defendant and his father Govindasami. The
said Govindasami had formed a lay out under the name and style of
VMG Nagar. From the lay out so formed, the plaintiff purchased Plot
No.51 on 31.03.2023. After having sold the property in favour of
the plaintiff, the second defendant fraudulently altered the lay out
by giving new plot numbers to the property and sold one such
property to the first defendant.
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4. The first defendant initiated O.S. No.114 of 2019 on the file
of the District Munsif Court at Katpadi for a declaration that the sale
deed executed in favour of the plaintiff herein is null and void and
for the relief of permanent injunction restraining the civil revision
petitioner/present plaintiff from interfering with his peaceful
possession and enjoyment of the property. The schedule of property
in O.S. No.114 of 2019 on the file of District Munsif at Katpadi is as
hereunder:
ntYhh; khtl;lk;. ntYhh; gjpt[ khtl;lk;. fhl;gho
tl;lk;. nf/tp/ Fg;gk; rhh; gjpit nrh;e;j ntg;g';fndhp
fpuhkk;. rh;nt vz;fs;/ 144-1. 144-2. 143. 142-1. 142-2.
147-2 Mf ,itfspy; fye;jhw;nghy; kidfis
mikj;J tpw;gid bra;jJ nghf epYitapy; vdJ
bgaUf;F bfhLj;j kid vz;/51 f;F ehd;F
vy;iyfs; kw;Wk; mst[fs; tptuk;.
nkw;go rh;nt vz;fspy; fpHf;F nkw;fhf
mike;Js;s 18 mo mfy bjUtpw;F fpHf;F kid
vz; 50f;F tlf;F. kid vz; 52f;F bjw;F kid
vz; 73f;F nkw;F ,jd; kj;jpapy; fpHf;F nkw;fhf
mo 50 tlf;F bjw;fhf mo 22 Mf 1100 rJuo
bfhz;l fhypkid kl;Lk;/
5. The suit property in O.S.No.875 of 2022 on the file of the
Subordinate Judge at Katpadi is as hereunder:
https://www.mhc.tn.gov.in/judis
ntYhh; khtl;lk;. ntYhh; gjpt[ khtl;lk;. fhl;gho
tl;lk;. fPH;tHpj;Jizah';Fg;gk; rg;oiar; nrh;e;j
ntg;g';fnehp fpuhkk;. g[d;bra; rh;nt vz;fspy; rh;nt
vz;/ 144-1. 144-2. 143. 142-1. 142-2. 147-2 Mf
,itfspy; fye;jhw;nghy; kidfshf mikj;Js;sjpy;
tUk; kid vz;/51 f;F ehd;F vy;iyfSk;; kw;Wk;
mst[fSk; tptuk;; gpd;tUkhW:
nkw;go rh;nt vz;fspy; fpHf;F nkw;fhf
mike;Js;s 18 mo mfy bjUtpw;F fpHf;F. kid
vz; 50f;F tlf;F. kid vz; 52f;F bjw;F. kid
vz; 73f;F nkw;F. ,jd; kj;jpapy; fpHf;F nkw;fhf
mo 50. tlf;F bjw;fhf mo 22 Mf 1100 rJuo
gug;gst[ bfhz;l fhypkid kl;Lk;/
6. It is pertinent to point out that the first defendant in
O.S.No.875 of 2022 is the plaintiff in O.S.No.114 of 2019. He has
not disputed the identity of the property in the first suit. According
to him, the sale deed that had been executed in favour of the
present civil revision petitioner is one for security and not with the
intention to pass title to the present plaintiff. This shows that the
execution of the document has been admitted by the first defendant
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but he pleads that the document is not a deed of sale but the one
executed as a security for loan purposes.
7. Though the identity of the property is not in dispute, the
plaintiff filed an application in I.A.No.1 of 2020 seeking for
appointment of advocate commissioner to measure the suit
property according to his document. The second respondent
adopted his written statement as a counter to the application for
appointment of Advocate Commissioner. The learned Trial Judge
dismissed the application. Hence this revision.
8. I heard Mr.R.Vasudevan for the civil revision petitioner.
9. Mr.Vasudevan argues that the sale made by the second
defendant in favour of the first defendant is fraudulent as he has
changed the plot numbers in the lay out and had sold the property.
He argues that only if the Commissioner visits the property and
surveys and submits a report along with the report of a surveyor, it
will help the Court with respect to the issues presented in the suit.
10. I have carefully considered the submission of
Mr.Vasudevan. I have extracted the schedule of property in both
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the suits in the earlier portion of the judgment. This shows that
there is no dispute with respect to the identity of the property by
the present plaintiff or by the present second defendant through
whom the first defendant claims. Both of them are clear on the
property while one pleads that the sale executed in his favour is
valid, the other pleads that the sale in favour of the present plaintiff
is vitiated on account of certain circumstances.
11. The purpose of appointing an advocate commissioner is to
elucidate the matter in issue. As rightly held by the learned Trial
Judge, if there is a dispute in identity, certainly a commissioner
could be appointed. When both parties are ad idem on the nature
and identity of the property, the question of appointing the advocate
commissioner does not arise at all. That being the situation, I do not
find any reason to take a different view than the one taken by the
learned Subordinate Judge at Katpadi.
12. Suffice it to state that O.S.No.875 of 2022 being a counter
suit to O.S.No.114 of 2019, interest of justice requires that both
suits be tried together and common judgment be pronounced in the
same. Accordingly, while dismissing the civil revision petition, I pass
the following order:
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12.1 In case, the suit has already not been
transferred, O.S.No.114 of 2019 on the file of District
Munsif at Katpadi shall be transferred to the file of the
learned Subordinate Judge at katpadi to be heard and
disposed of along with O.S.No.875 of 2022;
12.2 The learned judge shall record common
evidence and render a common judgment.
13. With the above observation, the civil revision petition is
dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
10.01.2025
Index:Yes/No
Neutral Citation:Yes/No
mmi
https://www.mhc.tn.gov.in/judis
V. LAKSHMINARAYANAN,J.
mmi
To
1.The Subordinate Judge,
Katpadi, Vellore District.
2.The District Munsif,
Katpadi.
10.01.2025
https://www.mhc.tn.gov.in/judis
