Madras High Court
Rukmani vs Ramalingam on 13 March, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.R.P.(PD)(MD)No.472 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.03.2025
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(PD)(MD)No.472 of 2023
1.Rukmani
2.Niroja
3.Venkateswaran ...Petitioners/Petitioners/Plaintiffs
Vs
1.Ramalingam
2.Arumbu
3.Manthiramoorthy
4.Karunamoorthy
5.Usharani
6.Vijayaragavan
7.Subash
(Notice to the 6th respondent
may be dispensed with) ...Respondents/Respondents/Defendants
PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of
India, as against the fair and decreal order made in I.A.No. 1 of 2022 in O.S.No.
233 of 2018, on the file of the District Munsif Court, Pattukkottai, dated
08-12-2022.
For Petitioners : Mr.N.Balakrishnan
For Respondents : Mr.S.Deenadhayalan for R1
No appearance for R2 to R5 and R7
R6- Dispensed with
*****
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C.R.P.(PD)(MD)No.472 of 2023
ORDER
The plaintiffs in O.S.No.233 of 2018, on the file of the District Munsif
Court, Pattukottai, have filed the present revision petition, challenging the
dismissal of their application for appointment of Advocate Commissioner to
note down the physical features of the property along with a report and plan.
2.A perusal of the records reveal that the revision petitioners herein had
filed the above said suit for the relief of declaration of title over 'A' schedule
property. The plaintiffs had further prayed for recovery of possession of items
Nos.1 and 2 of the "B' schedule property from the first defendant. The plaintiffs
had further prayed for recovery of possession of third item of the "B' schedule
property from the defendants 2 to 7.
3.Pending suit, the plaintiffs had filed I.A.No.1 of 2022, for appointment
of Advocate Commissioner to note down the physical features of the property
along with rough sketch and report.
4.According to the plaintiffs, the defendants in the suit have claimed that
they are not in possession of survey numbers which are pointed out in the plaint
schedule. In such circumstances, the Advocate Commissioner has to be
appointed to note down which of the defendants are in possession of which
survey numbers. This application
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C.R.P.(PD)(MD)No.472 of 2023
that the plaintiffs are attempting to collect the evidence through the Advocate
Commissioner. The trial Court has accepted the contentions of the defendants
and dismissed the petition. Challenging the same, the present revision petition
has been filed.
5.According to the learned counsel appearing for the revision petitioners,
a suit had been filed alleging that some of the defendants are in possession of
certain particular survey numbers. However, in the written statement, the same
has been disputed by them. In such circumstances, unless an Advocate
Commissioner is appointed to find out which of the defendants are in
possession of the respective survey numbers, it would be difficult for the
plaintiffs to establish their case.
6.The learned Counsel appearing for the revision petitioners, relying
upon the judgments of this Court reported in 1999 (2) MLJ 526 and 2019 (2)
MWN(Civil) 514, had contended that appointment of Advocate Commissioner
is necessary in order to minimise the oral and documentary evidence. Further, it
would not cause any prejudice to the defendants. He further relied upon the
judgment of this Court reported in 2009 (1) TLNJ 145 (Civil) and contended
that the application has been filed only to enlighten the Court and not to fish out
any evidence.
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C.R.P.(PD)(MD)No.472 of 2023
7.Per contra, the learned Counsel appearing for the respondents herein
relied upon the averments in I.A.No.1 of 2022 had contended that the
application has been filed for the specific purpose to find out the possession of
the defendants. The Advocate Commissioner can decide about the possession of
the parties.
8.I have considered the submissions made on either side and perused the
materials available on record.
9.The prayer in the suit will clearly reveal that the plaintiffs have
categorically averred that which of the defendants are in possession of which
items of the property. The said facts have been specifically disputed by the
defendants. Therefore, the burden would be upon the plaintiffs to establish that
the defendants are in possession of those particular items of the properties.
10.A perusal of the affidavit filed in I.A.No.1 of 2022, reveals that the
petitioners want to appoint an Advocate Commissioner for the purpose of
finding out the possession of the defendants with regard to the various survey
numbers. Therefore, it is clear that the application has been filed only to find
out whether the defendants are in possession of the respective items of the suit
schedule property or not.
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C.R.P.(PD)(MD)No.472 of 2023
11.It is settled position of law that an Advocate Commissioner cannot be
appointed to find out the possession of any one the parties to the proceedings.
12.As far as the judgments relied upon by the learned Counsel appearing
for the revision petitioners are concerned, those cases relate to suits, where the
identity of the the suit schedule property was in dispute. As far as the judgment
in 2009 (1) TLNJ 145(Civil) is concerned, there was a dispute with regard to
existence of the cart track. However, in the present case, there is no dispute with
regard to the identify or lie or location of the suit schedule property. In such
circumstances, the prayer sought for, appointment of Advocate Commissioner is
not sustainable. The trial Court has rightly rejected the application. There are no
merits in the revision petition.
13.Accordingly, this Civil Revision Petition stands dismissed. No costs.
13.03.2025
Internet:Yes/No
Index:Yes/No
RJR
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C.R.P.(PD)(MD)No.472 of 2023
R.VIJAYAKUMAR, J.
RJR
To
The learned District Munsif, Pattukkottai.
Copy to:-
The Section Officer,
VR Section,
Madurai Bench of Madras High Court, Madurai.
C.R.P.(PD)(MD)No.472 of 2023
13.03.2025
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