This order dismissed a Civil Revision Petition challenging the trial court's appointment of an Advocate Commissioner. The Court held that appointing a Commissioner to ascertain physical features regarding alleged land encroachment and pathway issues was necessary and not an illegality.
Civil Revision Petition dismissed and connected miscellaneous petition closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.06.2017
CORAM
THE HONOURABLE Ms. JUSTICE V.M.VELUMANI
CRP (PD) No.1589 of 2017 and CMP.No.7509 of 2017
Malarvizhi
.. Petitioner
Vs
1.R.Palaniappan 2.R.Subramani
3.C.Karuppannan
.. Respondents
Prayer:- Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decretal order dated 17.03.2017 made in I.A.No.398 of 2015 in O.S.No.118 of 2015 on the file of the Subordinate Judge, Tiruchengode, by allowing this Civil Revision Petition.
For Petitioner : Mr.R.Marudhachalamurthy
ORDER
The Civil Revision Petition has been filed to set aside the fair and decretal order dated 17.03.2017 made in I.A.No.398 of 2015 in O.S.No.118 of 2015 on the file of the Subordinate Judge, Tiruchengode.
and 2 are the plaintiffs and the third respondent is the second
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defendant in O.S.No.118 of 2015 on the file of Subordinate Court, Tiruchengode. The respondents 1 and 2 filed a suit for mandatory injunction to remove the encroachments made by the petitioner by constructing a compound wall and house in the 'A' schedule property of the suit and to restore the suit cart track as per the sale deed dated 22.02.1968. According to the respondents 1 and 2, their father Mr.Ramasamy Gounder had purchased the suit schedule property situated on the southern side in S.F.No.81 of Amani Village of Tiruchengode Taluk along with 8 feet common pathway. Subsequently, the third respondent/second defendant have purchased a portion of the property situated in northern side in S.F.No.81/2 of Amani Village from one Perumayee and others vide registered sale deed. Thereafter, the third respondent have also purchased a portion of the property in S.F.No.81/3A of Amani Village from one K.T.Nageswara Iyyar and others. Later, the third respondent had sold the aforesaid properties to the petitioner herein vide Document No.1075/2002 registered at Sub Registrar Office, Komarapalayam. While selling the property to the petitioner, the third respondent had mentioned in the sale deed that the suit property includes 20 feet cart track and the same is in existence. Taking advantage of the recitals in the said sale deed, the petitioner attempted to form 20 feet width cart track and accordingly the petitioner/1st defendant encroached a major portion of the "A" schedule property belonging to the respondents 1
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and 2/plaintiffs by constructing a compound wall and residential house. Therefore, the respondents 1 and 2 have instituted a suit for mandatory injunction against the petitioner and third respondent herein.
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defendant upon purchase of property from the third respondent have constructed a compound wall and house in the year 2005 and also obtained electricity connection.
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plantiffs/respondents 1 and 2 to prove their case independently that the petitioner had encroached the land belonging to them and not by way of appointing an Advocate Commissioner to collect evidence on their behalf. On the other hand, it is the case of the petitioner that as agreed by the father of the respondents 1 & 2 and the third respondent, the cart track was widened from 8 feet to 20 feet for easy access even before several years and therefore the said cart track is common to both to the petitioner and respondents 1 and 2 and hence the encroachment as alleged by the respondents 1 and 2 is frivolous and false. It is also contended by the petitioner that the third respondent had purchased the land in S.No.81/3A only for the purpose of forming cart track and with an intention to connect his land along with 20 feet cart track which is in existence in S.No.81/2 and therefore the third respondent has valid title and right over the said cart track, and thereafter when the petitioner purchased the said properties from the third respondents, he is entitled to have a right over the same. Hence, according to the petitioner, the question of encroachment will not arise in the said case.
common pathway in the suit property and the issue is to decide whether the petitioner had encroached the land that belonged to the respondents 1 and 2 or not, or there was a common pathway already
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in existence, it is necessary to appoint the Advocate Commissioner and to note down the physical features with help of a Surveyor. The learned Judge has considered all the above facts and allowed the application in I.A.No.398 of 2015 for appointment of the Advocate Commissioner filed by the respondents 1 and 2. There is no illegality or irregularity in the order dated 17.03.2017 passed by the learned Sub Judge, Tiruchengode in I.A.No.398 of 2015 in O.S.No.118 of 2015, warranting interference by this Court.
05.06.2017
ds
Speaking Order/Non-speaking Order Index : Yes / No
To:
The Subordinate Court, Tiruchengode.
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V.M.VELUMANI,J
ds
CRP (PD) No.1589 of 2017 and CMP.No.7509 of 2017
05.06.2017 http://www.judis.nic.in
3 issues framed by the court
Whether a trial court acted illegally or irrationally in appointing an Advocate Commissioner to investigate alleged land encroachment in a suit for mandatory injunction.
Whether evidence collection via an Advocate Commissioner is impermissible in a suit for mandatory injunction.
Whether a common pathway dispute warrants judicial intervention to appoint a Commissioner to ascertain physical features.
3 provisions across 2 enactments
Malarvizhi
R.Palaniappan
R.Subramani
C.Karuppannan
V.M.Veluman
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
