Madras High Court
Madakkannu vs Sudalaimuthu on 16 June, 2025
Author: M.Dhandapani
Bench: M.Dhandapani
C.R..P.(MD).No.1665 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.06.2025
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
C.R.P(MD)No.1665 of 2021
and
C.M.P.(MD)No.9000 of 2021
1.Madakkannu
2.Mutharasu
3.Ravi
4.Suresh Kumar
5.Sornam @ Mohana Sundaram
6.Chellammal
7.Velmurugan
8.Arumugam ... Petitioners
Vs.
Sudalaimuthu ... Respondents
PRAYER: Civil Revision Petition - filed under Article 227 of Constitution of
India, to set aside the fair and decreetal order dated 03.03.2021 passed in
I.A.No.1 of 2020 in A.S.No.80 of 2018 on the file of the Additional Sub
Court, Tirunelveli.
For Petitioner : Mr.S.P.Maharajan
For R1 to R4 : No Appearance
1/6
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C.R..P.(MD).No.1665 of 2021
ORDER
This Civil Revision Petition is filed challenging the fair and decreetal
order dated 03.03.2021 in I.A.No.1 of 2020 in A.S.No.80 of 2018 on the file
of the Additional Sub Court, Tirunelveli.
2.Though notice has been served on the respondent, none appeared on
his behalf either in person or through counsel. However, considering the
pendency of this petition, this Court is inclined to dispose of this Civil
Revision Petition based on the available records.
3.The petitioners are the plaintiffs in the suit in O.S.No.505 of 2011
filed for permanent injunction as against the respondent/defendant alleging
that the respondent/defendant encroached two feet of the petitioner's land and
constructed a house. The said suit was dismissed. As against the said
judgment and decree, the petitioners preferred an appeal in A.S.No.80 of 2018
before the Additional Sub Court, Tirunelveli. In that appeal, the petitioners
filed an interlocutory applications for appointment of an Advocate
Commissioner to inspect the property and file a report and plan under Order
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26 Rule 9 of CPC. The said application was dismissed. Challenging the
same, the present Civil Revision Petition is filed.
4.The learned counsel for the petitioners submits that the respondent
has encroached the property of the petitioners to an extent of 2 feet. In the
suit, the respondent claimed that there is a Well in the suit property and the
same is in existence even as on date. However, the learned counsel for the
petitioners submits that the Well was closed long back and in that property,
two feet is encroached by the respondent. Hence, only if an Advocate
Commissioner is appointed to inspect the suit property, the encroachment will
be revealed. However, the Lower Appellate Court without appreciating all
these facts, has dismissed the petition.
5.The facts in the present are not in dispute. Perusal of the affidavit
filed in support of this petition reveals that the petitioners alleges that the
respondent has encroached the property of the petitioners to an extent of 2
feet and constructed a house. The suit was filed seeking permanent injunction
and the said suit was dismissed. An appeal was filed challenging the said
judgment. In that appeal proceedings, an application was filed seeking
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appointment of an Advocate Commissioner and the said application was
dismissed by the Lower Appellate Court.
6.The allegation made against the respondent and the prayer sought by
the petitioners in the interlocutory application is different. The prayer and the
contentions raised in the interlocutory application are contrary to the nature of
the suit, which was filed only for permanent injunction. The Lower Appellate
Court considered all these aspects and dismissed the application filed by the
petitioners and the same needs no interference.
7.Accordingly, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
16.06.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ta
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To
1.The Additional Sub Court, Tirunelveli.
2. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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M.DHANDAPANI,J.
ta
16.06.2025
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